THE  GIFT  OF 

MAY  TREAT  MORRISON 

IN  MEMORY  OF 

ALEXANDER  F  MORRISON 


AMERICA'S 
FOREiaN  POLICY 


AMERICA'S 
FOREIGN    POLICY 


ESSAYS  AND 
ADDRESSES 


BY 

THEODORE  SALISBURY  WOOLSEY 

M.  A. 

PROFESSOR  OF    INTERNATIONAL   LAW   IN  THE 
LAW  SCHOOL   OF   YALE   UNIVERSITY 


NEW  YORK 
THE  CENTURY  CO. 

1898 


Copyright,  1886,  by  Allen  Thokndike  Rice. 

Copyright,  1895,  1896,  by  Tm;  Forum  Publishing  Co. 

Copyright,  1893,  1896,  1897,  1898,  by  The  Yale  Law  Jouknal. 

Copyright,  1892,  1894,  1895, 1896,  by  The  Yale  Publishing  Compant. 

Copyright,  1898,  by  The  Century  Co. 


The  DeVinne  Pre88. 


s 


1415 
W88*- 


T 


INTRODUCTION 

HE  essays  and  addresses  gathered  in  this 
little  volume,  with  few  exceptions,  have 
been  called  ont  by  pnblic  events  during  the 
5      past  four  years.  For  the  courtesy  of  a  permis- 
j|r       sion  to  reprint  certain  of  them,  I  return  sin- 
5      cere  thanks  to  the  publications  where  they 
first  appeared.     They  were  adapted  for  spe- 
cial occasions,  or  to  meet  special  questions, 
g       and  differ  much  in  stjde  and  form  on  this 
J2       account.    Nor  has  pains  been  taken  to  re- 


move from  them  the  references  to  time  which 
they  contain.  Nevertheless,  it  is  hoped  that 
they  have  a  certain  unity  and  present  value 
^  in  a  discussion  of  the  foreign  policy  of  the 
52       United  States. 

Z  For  some  years  our  national  government 

o       has  seemed  to  me  to  be  on  the  eve  of  an  im- 
t       portant  change  of  policy  in  its  aims  and 
5       ideals.    It  has  shown  an  ever-growing  dispo- 
sition to  break  away  from  our  early  habit  of 
political  isolation,  and  to  assert  itself  in  the 
rivalries  of  the  world's  politics.    This  change 

V 

432555 


Tl  INTRODUCTION 

I  have  dreaded,  and  the  opposite,  the  con- 
servative view,  animates  many  of  my  pages. 

How  this  change  was  to  come,  no  man 
could  anticipate.  That  we,  as  a  people,  are 
nearer  to  its  realization  to-day  than  ever 
before,  is  a  fact  which  stares  us  in  the  face. 

One  important  step  in  the  new  program, 
call  it  colonialism  or  imperialism  or  what 
you  will,  has  been  taken  in  the  annexation 
of  the  Hawaiian  Islands.  And  the  motive 
for  it  largely  was  their  strategical  imjior- 
tance  and  their  convenience  as  a  stepping- 
stone  to  the  Philippines. 

The  terms  of  peace  to  be  agreed  upon  with 
Spain  will  go  far  to  decide  our  future  des- 
tiny. A  wonderful  chance  of  aggrandize- 
ment seems  to  be  within  our  grasp.  Shall 
we  seize  it?  Ought  we  to  resist  it?  Is  it 
consistent  with  our  true  mission,  with  our 
highest  development? 

There  are  two  sets  of  advocates  of  this 
policy  of  imperialism.  One  reasons  thus: 
The  capture  of  the  Philippines  is  a  divinely 
ordered  responsibility.  Whether  we  wish  it 
or  not,  the  civilization  and  Christianization 
of  these  populous  islands  have  been  suddenly 
laid  upon  our  shoulders.  Let  us  not  prove 
unworthy  of  the  trust.  The  other  sees  in 
the  retention  of  Spain's  colonies  a  chance  to 
provide  ourselves  with  foreign  markets,  and 
extend  our  foreign  trade,  which  may  never 
recur.    These  views  are  both  weighty,  both 


INTKODUCTION  vii 

sincere,  yet  both  may  be  mistaken.  How 
can  we  be  sure  that  this  opportunity  is  a  re- 
sponsibility to  be  borne,  and  not  a  tempta- 
tion to  be  resisted  ?  An  opportunity  is  not 
necessarily  a  reason.  And,  again,  does  the 
possession  of  colonies,  for  a  people  organized 
as  we  are,  promise  a  healthful  growth  of 
trade  and  markets,  or  such  an  entanglement 
with  the  rivalries,  jealousies,  and  ambitions 
of  other  and  powerful  nations  as  to  injure 
both  ? 

Already  in  the  manoeuvering  of  the  Ger- 
mans for  position  at  Manila,  we  may  see  a 
sample  of  the  difficulties  of  the  situation. 
In  this  connection,  let  me  say  very  frankly 
that,  if  I  understand  the  nature  of  the 
American  aright,  the  one  thing  which  he 
will  not  put  up  with  is  an  attempt  to  limit 
his  prerogatives  as  conqueror  or  treaty- 
maker.  Generous  and  broad-minded  he  may 
be  in  his  terms  of  peace ;  but  to  have  those 
terms  dictated  by  a  European  concert,  to  be 
put  on  the  plane  of  Turkey  or  of  Greece,  or 
even  to  be  curbed  in  victory  like  Russia  or 
Japan,  is  a  thing  not  to  be  endured.  He 
would  fight  in  preference.  And  yet  it  is  to 
just  such  a  necessity  that  the  new  policy 
would  expose  him.  From  a  single  power 
like  Germany  he  has  nothing  to  fear,  because 
Germany's  real  influence  is  continental.  It 
does  not  touch  him  nearly.  It  is  not  trans- 
latable into  colonial  importance  and  naval 


Mil  INTKODUCTION 

effectiveness.  The  mere  cost  of  a  contest 
with  the  United  States  would  endanger  her 
place  in  the  European  equilibrium.  But  let 
a  European  coalition  attempt  the  same  thing, 
and  how  can  one  power  resist  it,  imless  an 
ally  be  called  in,  and  the  world  be  set  by  the 
ears  ? 

The  old  theory  of  the  balance  of  power 
confined  its  working  to  the  European  system, 
to  land  power,  and  to  political,  not  commer- 
cial, growth.  There  are  signs  that  every  one 
of  these  limitations  is  being  overridden.  The 
scramble  for  land  in  Africa  and  in  China, 
the  reaching  out  for  new  markets,  the  inclu- 
sion of  Japan  in  the  world's  balance,  all  show 
that  we  cannot  be  within  the  sphere  of  the 
concert,  yet  not  of  it.  We  have  to  take  the 
bitter  with  the  sweet,  the  limitations  with 
the  privileges. 

Much  is  said  by  irresponsible  persons  of 
the  erection  of  the  United  States  into  a  great 
military  power  as  a  result  of  the  Spanish 
war.  But  clearly  this  depends  upon  the 
policy  which  we  elect  to  pursue.  If  we 
choose  imperialism,  then  it  is  true,  and  the 
lessons  of  organization  and  of  armament 
which  the  war  is  teaching  are  valuable  in- 
deed. On  the  other  hand,  if  we  are  content 
with  our  own  ideals,  the  fact  of  this  war  will 
be  a  bulwark  of  defense.  For  it  shows  that 
this  is  a  warlike  people;  that  it  does  not 
count  the  cost  in  following  an  ideal ;  that  it 


INTKODUCTION  ix 

does  not  threaten  merely,  and  that  it  knows 
how.  Such  a  reputation  is  worth  armies  and 
navies  in  defense,  while  the  small  establish- 
ment, small  but  efficient,  which  has  been  our 
usage,  is  a  pledge  of  unaggressiveness. 

In  one  respect  I  believe  that  we  might 
well  copy  the  older  powers — in  the  protection 
given  to  our  subjects  and  their  property  the 
world  over.  Not  like  a  swash-buckler,  but 
like  a  guardian,  calm  but  strong,  we  should 
protect  our  interests  and  collect  our  dues. 
And  if  this  duty  led  us  to  Smyrna,  to  seize 
an  equivalent  from  the  Porte  for  the  Ameri- 
can losses  in  Armenia,  it  might  prove  a  use- 
ful lesson  to  all  the  world. 

A  few  words,  finally,  as  to  our  attitude 
toward  Great  Britain.  The  cordial  sympa- 
thy of  that  country  with  this  during  the 
Spanish  war;  its  belief  in  our  honesty  of 
purpose  in  commencing  that  war ;  a  fancied 
identity  of  commercial  interests  in  China  — 
these  reasons,  together  with  a  sense  of  our 
common  heritage  of  speech  and  law  and 
ideal,  have  led  many  to  believe  that  these 
two  great  nations  could  l^e  harnessed  to- 
gether by  a  treaty  of  alliance,  and  made  to 
pull  with  even  trace  the  car  of  progress. 

Cordiality,  mutual  sympathy,  belief  in  one 
another's  sincerity,  pride  in  our  joint  inheri- 
tance—  these  qualities  the  two  peojjles  maj^ 
cherish  and  should  cherish;  an  alliance  be- 
tween the  two  governments  is  a  far  different 


X  INTRODUCTION 

and  more  doubtful  policy.  It  would  entail 
for  us  an  immediate  plunge  into  the  whirl- 
pool of  continental  politics ;  the  assumption 
of  unwelcome  and  unwonted  responsibilities ; 
the  straying  from  the  path  of  our  natural 
and  wonted  development.  For,  if  either 
party  is  attacked,  alliance  means  war.  Har- 
mony, agreement,  a  good  understanding  — 
these  we  can  strive  after ;  these  we  can  per- 
haps insure  by  aid  of  an  arbitration  treaty, 
upon  which  as  a  foundation  the  entente  can 
be  built  up.  But  let  each  nation  play  its 
own  hand,  judge  of  its  own  duty,  solve  its 
own  problems  in  its  own  way. 

What  destiny  the  coming  century  has  in 
store  for  our  beloved  land,  who  can  tell  ?  It 
depends  upon  the  moral  qualities  of  our  race, 
exemplified  in  government.  We  shall  need 
high  aim  and  integrity  of  purpose.  We  shall 
need  robust  common  sense.  If  these  pages 
contribute  in  any  degree  to  a  calm  and  sober 
judgment  of  the  vital  issues  of  the  future, 
they  will  have  served  their  end. 

T.    S.   WOOLSEY. 
Yale  University,  July  21,  1898. 


CONTENTS 

Our  Foreign  Policy,  and  its  Relation  to  ^^^^ 

Domestic  Problems 1 

The   Consequences  of   Cuban   Belliger- 
ency    25 

Our  Duty  to  Spain 37 

Responsibility  for  the  ^' Maine"     ...  53 

Cuba  and  Intervention 61 

The  War  with  Spain 71 

The  Future  of  the  Philippines  ....  103 

The  Law  and  the  Policy  for  Hawaii     .  115 
An  Interoceanic  Canal  in  the  light  of 

Precedent 133 

An  Interoceanic  Canal  from  the  Stand- 
point OF  Self-Interest 153 

An  Inquiry  Concerning  our  Foreign  Re- 
lations   , 169 

The  Fishery  Question. 195 

The  Bering  Sea  Award  .• 213 

The  President's  Monroe  Doctrine  .    .    .  223 
Some  Thoughts  on   the  Settlement  of 

International  Controversies     .    .    .  241 
Some    Cojdient    upon    the    Arbitration 

Treaty 261 

The  United  States  and  the  Declaration 

OF  Paris 273 


OUR  FOREION  POLICY,  AND   ITS 

RELATION  TO   DOMESTIC 

PROBLEMS 

AN  ADDEESS 

Before  the  American  Social  Science  Association, 
Saratoga,  September,  1897 


OUR   FOREIGN  POLICY,   AND   ITS 

RELATION  TO   DOMESTIC 

PROBLEMS 

C1TATE  policy  is  an  ever-changing  thing. 
1^  Rarely  can  a  country,  in  the  nature  of 
things  in  this  mutable  world,  pursue  an  iden- 
tical line  of  action  seeking  a  certain  end 
until  that  end  is  accomplished.  Sovereigns 
and  ministers  die  or  change;  unexpected 
problems,  unforeseen  difficulties,  arise ;  the 
nightmare  of  one  generation  may  become  the 
ideal  of  another. 

Moreover,  new  outlets  for  national  expan- 
sion are  found,  and  a  spirit  of  colonial  adven- 
ture crops  out  now  and  again  which  tempts 
nations  to  their  hurt.  Thus  the  German 
Empire  to-day  has  been  led  into  a  policy  of 
naval  development  and  African  land-grab- 
bing which  is  quite  inconsistent  with  its 
traditions,  its  genius,  and  its  capacity. 

Or  the  march  of  events  brings  about  the 
inevitable,  and  we  see  a  state  with  its  mind 
made  up  to  accept  what  a  previous  generation 


2  OUK  FOREIGN   POLICY,  AND   ITS 

would  have  aeceptecl  only  at  the  cost  of  war. 
Even  uow  we  are  wondering  whether  Eng- 
land has  not  acquiesced  in  Russia's  passion- 
ate deijire  for  a  ,Me»il'itpiTanean  outlet.  If  so, 
in  this  centur'y-loiig  hi'Ovement  of  Russia  we 
shoiiM  ii;n>i:  '^n  •  <3Xce^faon^:  to  the  rule :  she 
would  have  pursued  a  single  end  until  its 
accomplishment.  And  in  her  case  this  would 
be  more  probable  than  in  that  of  any  other 
power,  for  her  government  reflects  the 
arbitrary  rule  of  a  single  family.  The  more 
representative  the  government,  the  less  con- 
tinuous the  foreign  policy.  This  is  the  law 
which  we  should  expect,  and  in  our  own  case 
this  law  obtains.  As  one  party  succeeds  an- 
other in  power,  it  does  not  hesitate  instantly 
to  undo  what  its  predecessor  had  arranged. 
Thus,  to  go  back  a  few  years  only,  Mr.  Bay- 
ard tried  to  protect  seal  life  by  diplomatic 
agreement,  Mr.  Blaine  by  assertion  of  own- 
ership; President  Harrison  attempted  the 
annexation  of  Hawaii,  President  Cleveland 
negatived  it;  one  party  built  up  a  set  of 
reciprocity  treaties  upon  its  tariff  foundation, 
the  other  altered  the  tariff  and  the  treaties 
lapsed.  This  want  of  continuity  in  its  for- 
eign policy  must  be  a  sad  obstacle  to  our 
successful  diplomacy,  but  it  is  inevitable  in  a 
government  by  the  popular  will.  As  it  limits 
the  reliance  which  other  states  may  place 
upon  our  aid  and  our  attitude,  so  it  must 


RELATION   TO   DOMESTIC   rKOBLE:\rs  3 

necessarily  weaken  our  right  to  leadership 
and  powers  of  initiative. 

While  all  this  is  true,  in  one  respect  this 
country  has  pursued  with  fair  consistency 
a  policy  of  abstention  from  European  com- 
plications. Maintaining  an  attitude  of  self- 
defense  and  insisting  upon  its  rights, 
throughout  the  century  now  closing,  it  has 
enlarged  and  defined  its  borders  as  against 
Great  Britain  and  Russia  and  Mexico, 
France  and  Spain;  but  again  and  again 
it  has  declined  those  steps  which  would 
tend  to  make  it  a  sharer  in  the  problems 
of  continental  Europe.  Washington's  posi- 
tion at  the  end  of  the  eighteenth  century 
has  been  our  position  throughout  the  nine- 
teenth. And  the  reason  is  easy  to  see.  Our 
national  expansion  has  been  upon  internal 
lines.  There  has  been  room  at  home  for  all 
the  energy,  the  commercial  growth,  the 
national  development  of  which  the  countiy 
was  capable.  A  broad  belt  of  continent  was 
to  be  conquered,  and  the  century  has  been 
devoted  to  the  task.  Is  the  work  finished? 
Must  we  now  look  outside  of  our  own  borders 
to  find  room  for  our  exj^ansive  energy? 
Have  we  achieved  such  results  in  material 
growth,  in  political  development,  and  in  the 
solution  of  social  problems  that  we  can  fairly 
go  to  less  fortunate  peoples,  with  our  birth- 
right in  our  hands,  and  say  to  them,  "  Come, 


4  OUB  FOREIGN   POLICY,  AND   ITS 

share  our  heritage  with  us  "  ?  Is  a  forward 
policy,  an  aggressive  poHcy,  an  expansive 
policy  for  the  future,  consistent  with  our  in- 
ternal growth  and  the  wise  solution  of  the 
problems  confronting  us  ?  This  is  likely  to 
be  one  of  the  serious  questions  of  the  next 
quarter-century.  Already  there  is  evident  a 
tendency  to  view  our  foreign  relations  from 
a  new  point  of  view.  We  are  dividing  into 
conservatives  and  forwards — to  use  a  term 
which  avoids  characterization.  We  do  not 
as  yet  share  directly  in  European  politics; 
we  do  not  lift  our  voice  in  the  "concert"  of 
the  powers.  Our  changing  attitude  is  seen, 
rather,  with  regard  to  European  relations 
with  the  states  of  the  American  continent. 

If  we  examine  various  significant  acts  of 
our  national  government  and  couple  with 
them  the  passionately  urged  opinions  of 
many  of  our  senators  and  congressmen, 
backed  by  a  fairly  extensive  portion  of 
the  press,  we  shall  find,  I  think,  a  somewhat 
indefinite  i:)rogram,  but  one  positively  held 
and  urged,  and  with  a  single  end  in  view — 
the  territorial  growth  of  the  United  States 
and  the  extension  of  its  influence  upon  this 
continent. 

Disclaiming— as  yet,  at  least— a  desire  to 
share  in  European  affairs,  these  forwards 
say :  "  America  for  the  Americans."  They  as- 
sert that  because  we  play  no  part  in  Europe, 


EELATION   TO   DOMESTIC   PROBLEMS  5 

European  powers  must  in  turn  refrain  from 
niingiing  in  American  affairs,  and  that,  in 
fact,  the  time  is  ripe  for  a  declaration  that  no 
European  sovereignty  can  be  23ermitted  to 
control  territory  on  this  side  of  the  Atlantic. 
It  is,  of  course,  a  110)1  sequltur  to  argue  that, 
since  we  havx  no  hand  in  European  affairs, 
they  must  put  no  finger  into  ours.  For  our 
policy— as  every  policy  must  be— was  and  is 
determined  by  our  own  sense  of  expediency ; 
it  is  not  a  matter  of  right  or  of  reciprocity. 
One  of  the  phenomena  which  indicates  this 
change  of  attitude  alluded  to  is  the  growth 
of  belligerent  feeling  which  has  accompanied 
the  recent  increase  in  our  naval  strength. 
Perhax^s  the  naval  growth  is  itself  a  sign, 
but  I  prefer  to  think  not.  For  the  revolu- 
tion in  naval  architecture  since  our  Civil  War 
has  demanded  a  completely  new  navy  to  put 
us  in  the  same  relative  position  as  formerly. 
The  prime  object  of  a  navy  is  to  protect  the 
persons  and  the  commerce  of  a  state's  sub- 
jects the  world  over.  In  building  a  navy 
before  enacting  such  laws  as  will  give  us  a 
share  in  the  world's  carrying-trade,  we  are 
open  to  the  charge  of  putting  the  cart  before 
the  horse.  Nevertheless  there  are  many  in- 
terests to  guard  in  foreign  ports  besides  a 
carrying-trade,  and  the  United  States  must 
perform,  with  other  powers,  the  duty  of 
policing  the  seas,  of  furnishing  protection 


6  OUR  FOEEIGN   POLICY,  AND   ITS 

to  its  subjects  among  the  uncivilized  races, 
of  ceremonial  observance,  of  neutrality  en- 
forcement, besides  making  itself  ready  for  a 
possible  war  of  self-defense.  But  if,  instead 
of  trying  to  build  up  our  trade  and  protect- 
ing our  citizens  and  enforcing  our  laws,  we 
use  this  weapon  to  threaten  others  with,  it  is 
an  abuse.  Fortunately  there  are  as  yet  no 
very  flagrant  instances  of  such  abuse.  The 
truculent  spirit  which  I  have  in  mind,  which 
we  are  apt  to  call  Jingoism,  has  not  been 
often  translated  into  action.  But  it  is  sug- 
gested by  our  attempt,  during  the  Harrison 
administration,  to  protect  the  seals  of  Bering 
Sea  as  a  matter  of  right  instead  of  by  inter- 
national agreement ;  by  the  sensational  chase 
of  the  Chilian  ship  Itata^  a  vessel,  as  our 
courts  later  declared,  engaged  in  legitimate 
commerce ;  by  the  reproof  of  a  navy  officer 
who  failed  to  protect  General  Barrundia  from 
the  laws  of  his  own  country,  violated  by 
him,  when  he  was  within  its  jurisdiction; 
most  of  all,  by  the  frequent  and  ridiculous 
outbursts  of  temper  on  the  part  of  individuals 
in  and  out  of  Congress,  who  insist  that  the 
navy  shall  blow  some  one  or  something  which 
displeases  them  out  of  the  water.  It  is  the 
unpleasant  habit  of  "  pulling  a  gun,"  which 
obtains  in  certain  parts  of  our  country,  raised 
to  a  national  usage. 

Another  example  of  a  similar  tendency  is 


RELATION   TO   DOMESTIC   PROBLEMS  7 

seen  in  the  extension  and  more  emphatic 
assertion  of  that  article  of  out  national  policy 
which  we  call  the  Monroe  Doctrine. 

When  we  were  small  and  weak  as  a  people, 
it  was  natural  to  think  that  the  imposition  of 
a  European  sovereignty  upon  a  minor  Ameri- 
can state,  against  its  will,  might  threaten  us 
as  well  as  hurt  it.  But  the  richer  and  more 
powerful  we  grow,  and  the  less  this  danger 
really  exists,  the  more  vociferously  we  pro- 
fess to  fear  it. 

This  topic  has  been  so  thoroughly  threshed 
out  in  recent  discussion,  however,  that  I  turn 
to  another  which  is  perhaps  more  important, 
namely,  the  position  we  shall  elect  to  take  in 
regard  to  a  Central  American  canal  connect- 
ing the  oceans.  Here  what  is  wanted  now, 
and  what  has  been  consistently  planned  for 
in  our  past  diplomacy,  is  such  a  condition  of 
security  and  stability,  of  peaceful  construc- 
tion and  peaceful  maintenance,  as  will  enable 
such  a  beneficent  public  work  to  be  built. 
This  has  been  attempted  by  guaranteeing  its 
neutrality  and  its  freedom  from  the  exclusive 
control  of  any  single  nation.  This  policy  the 
forwards  seek  to  change.  If  a  treaty  stands 
in  their  way,  as  the  Clayton-Bulwer  conven- 
tion does,  it  must  be  abrogated.  If  a  canal 
is  to  be  built,  we,  and  we  alone,  they  declare, 
must  control  it.  And  why  ?  Solely  because 
such  control  will  add  to  the  effectiveness  of 


8  OUK   FOllEIGN   POLICY,  AND   ITS 

our  fleet  by  giving  it  peculiar  facilities  of 
mobilization  and  operation  upon  both  our 
coasts.  The  price  which  we  must  pay  for 
this  privilege  is  such  an  increase  of  our  army 
as  to  garrison  and  hold  the  canal  against 
local  insurrection  or  foreign  attack ;  a  large 
increase  of  our  vulnerable  sea-coast ;  and  the 
reputation  of  a  national  breach  of  faith.  To 
this  heavy  cost  in  taxes,  in  risk  of  foreign 
embroilment,  and  in  dishonor,  should  be 
added  the  damage  to  our  commerce  which 
would  be  likely  from  its  use  of  a  canal  sub- 
ject to  the  hazards  of  war,  instead  of  free 
from  those  hazards,  as  an  international 
guaranty  of  neutrality  would  make  it. 

Perhaps  the  most  striking  feature  of  that 
wave  of  public  excitement  which  was  aroused 
by  the  Venezuelan  difficulty  of  1895-96  was 
the  revelation,  by  Congress  and  by  a  large 
section  of  the  public  press,  of  deep-seated 
hatred  of  England. 

Was  this  an  inheritance  from  the  last 
century !  Was  it  an  outgrowth  of  the  Civil 
War  ?  Was  it  the  result  of  Irish  influence  in 
American  politics,  or  because  England  was  a 
gold-standard  country  or  believed  in  free 
trade  ?  Or  was  it  simply  an  evidence  of  the 
nervous,  excitable,  volatile  American  temper- 
ament, which  now  and  then  leads  this  peace- 
ful people  into  an  absurdity  of  warlike  desire 
such  as  followed  the  Virginius  capture  and 


RELATION   TO   DOMESTIC   PROBLEMS  9 

the  attack  upon  the  Baltimore's  crew  in  Val- 
paraiso ?  Whatever  the  explanation  may  be, 
whether  it  is  one  or  all  of  these,  the  existence 
of  the  feeling  is  a  phenomenon  which  has 
snrprised  calm  observers  in  this  conntry  and 
has  shocked  and  amazed  the  British  people. 
More  and  more  it  can  be  used  by  demagogues 
in  this  country  to  further  their  own  ends. 
Is  it  a  question  of  tariff  I  Then  that  tariff 
which  will  make  England  smart  must  be  the 
right  one.  Is  it  a  question  of  currency?  Our 
system  must  run  counter  to  that  of  the  "  rob- 
ber" nation  to  be  satisfactory.  Or  is  there 
an  arbitration  treaty  proposed  to  lessen  the 
chance  of  war  and  insure  a  ready  and  peace- 
ful settlement  of  nearly  all  disputes  ?  It  must, 
per  se,  be  a  mistake  because  of  its  origin ; 
some  insidious  British  wile  lies  hid  in  it. 

There  was  another  reason  for  the  defeat  of 
the  arbitration  treaty.  It  came  up  for  ratifi- 
cation at  a  time  when  the  Senate  was  engaged 
in  contest  with  the  executive  branch  of  the 
government  over  the  right  of  initiative  in 
our  foreign  relations.  "We  order  you  to 
recognize  the  independence  of  Cuba,"  said 
the  Senate.  "  You  cannot,  and  we  will  not," 
replied  Mr.  Cleveland  and  Mr.  Olney,  follow- 
ing an  unbroken  line  of  precedents.  Accord- 
ingly, the  arbitration  treaty  was  so  amended 
by  the  Senate  as  to  keep  the  power  of  refer- 
ence to  the  treaty  courts  in  its  own  hands, 


10  OUR  FOEEIGN   POLICY,  AND   ITS 

which  was  one  of  the  very  things  which  the 
people  at  hirge  desired  to  avoid. 

To  curtail  the  powers  granted  by  the  Con- 
stitution to  the  executive,  to  keep  alive  an 
active  distrust  of  and  hostility  to  Great 
Britain,  to  play  an  aggressive  part  in  our 
relations  with  other  powers,  to  assume  a 
headship  of  the  states  of  the  American  con- 
tinent, with  a  vague  yet  dangerous  responsi- 
bility for  them  to  correspond — such  is  the 
forward  policy.  And  it  is  more — and  more 
definite— than  this.  It  contemplates  the  an- 
nexation of  Hawaii,  on  account  of  its  stra- 
tegical position  at  the  meeting-place  of  the 
lines  of  travel  in  the  Pacific.  This,  the  first 
and  easiest  step  in  the  program,  is  also  the 
least  objectionable,  judged  by  itself  alone,  yet 
seems  to  be  not  without  complications.  It 
desires  some  form  of  control  over  Cuba  also, 
because  Cuba  would  be  the  key  to  a  Central 
American  canal.  It  even  dreams  of  Mexico 
and  Canada  as  our  eventual  possessions. 
Thus  it  aims  at  extension  of  territory  as 
an  aid  to  extension  of  power.  The  question 
whether  this  people  needs  now,  or  will  soon 
need,  more  land  to  grow  over,  is  one  about 
which  anybody  may  have  an  opinion.  We 
see  now  that  the  Louisiana  purchase  was  a 
far-sighted  sagacious  step.  The  annexation 
of  Texas  and  conquest  of  California  may  be 
criticized  as  a  wrong  to  Mexico,  but  were 


RELATION   TO   DOMESTIC  PEOBLEMS         11 

essential  to  our  symmetrical  development. 
And  lately  Alaska  has  begun  to  evidence 
Mr.  Seward's  skill  in  land-speculation.  May 
it  not  be  that  further  extension,  in  years  to 
come,  will  prove  to  be  equally  praiseworthy  I 
Possibly.  Yet  there  are  two  or  three  consid- 
erations which  should  not  be  lost  sight  of. 
Except  in  the  case  of  Alaska,  these  earlier 
additions  were  of  contiguous  territory.  They 
did  not  present  the  problem  of  ingrafting  dis- 
tant colonial  government  upon  our  system. 
Moreover,  they  were  of  territory  practically 
unoccupied.  They  did  not  involve  the  diffi- 
culties of  administering  the  affairs  of  alien 
races  in  full  control  and  ownership  of  foreign 
soil.  And,  most  of  all,  they  were  to  provide 
room  for  a  nation's  growth  of  population,  not 
to  enhance  its  strategical  position. 

If  the  annexationists  allege  the  need  of 
wider  limits  for  our  growing  millions,  it  is 
one  thing.  With  the  census  maps  before  us, 
we  can  judge  of  the  necessity.  But  if  their 
reasons  are  political  and  military,  if  their 
coveted  soil  is  already  thickly  settled,  it  is 
quite  another.  When  Jingoism  ceases  to  be 
merely  the  stock  in  trade  of  the  demagogue, 
and  aspires  to  expression  in  political  action, 
it  is  time  to  judge  it  seriously. 

What  now  is  the  conservative  policy  to 
contrast  with  these  aspirations  ?  It  may  be 
expressed  by  a  single  phrase— the  settlement 


12  OUK  FOREIGN   POLICY,  AND   ITS 

of  domestic  problems  uncomplicated  by  for- 
eign questions.  Slavery  and  States'  rights, 
as  great  political  problems,  have  been  settled. 
But  the  currency,  the  tariff,  the  way  of  escape 
from  machine  politics,  are  difficulties  which 
still  confront  us,  besides  various  minor  but 
by  no  means  unimportant  movements,  such 
as  the  reform  of  the  civil  service,  a  better 
banking  system,  forest  preservation,  reform 
in  municipal  administration,  and  railway- 
traffic  regulation.  The  first  two  of  these 
have  formed  the  dividing-lines  of  our  politi- 
cal parties  since  the  war.  It  has  been  hoped 
that  a  compromise  tariff  could  be  framed 
which  might  be  stable.  Although  drawn  on 
the  lines  of  protection,  it  should  be  so  mod- 
erate and  so  productive  of  revenue  as  to  dis- 
arm the  opposition  of  the  free-traders.  But 
of  this,  unhtippily,  there  is  no  sign.  The 
pendulum  even  now  has  swung  back,  the 
highest  of  high  tariffs  has  been  enacted,  after 
a  year  or  two  of  over-stimulation  the  reaction 
will  come,  and  the  whole  dreary  contest  must 
be  fought  over  again.  Even  more  dangerous 
is  the  currency  question,  with  which  a  faulty 
banking  system  is  entangled.  Our  currency 
defects  have  grown  out  of  a  popular  delusion 
which  was  fostered  by  the  necessities  of  the 
Civil  War  and  the  legal-tender  decisions.  By 
this  delusion  a  large  number  of  honest  and 
in  the  main  sensible  citizens  have  been  led  to 


EELATION   TO   DOMESTIC  PEOBLEMS  13 

believe  that  the  government  stamp  upon 
metal  or  paper  originates  value.  If  value  is 
created  by  stamp  in  accordance  with  a  vote, 
the  next  step  is  naturally  to  create  as  much 
value  as  possible  and  put  it  in  the  hands 
of  the  people  as  widely  as  possible.  This 
menace  to  the  stability  of  our  measures  of 
value  introduces  a  cause  of  insecurity,  of 
bad  times,  from  which  our  chief  commercial 
rivals  are  free.  Like  us,  they  may  suffer 
from  over-production,  from  over-expansion 
of  credits ;  they  are  liable  to  vast  strikes  and 
serious  panics ;  they  are  peculiarly  subject  to 
the  malign  influences  upon  connnerce  of  the 
hostile  rivalries,  the  attitude  of  armed  ex- 
pectancy, which  pervade  Euroj^e;  but  they 
at  least  know  in  what  medium  their  contracts 
are  to  be  carried  out.  They  are  free  from  the 
supremest  blight  which  trade  can  be  sub- 
ject to. 

This  is  all  a  commonplace;  we  shut  our 
eyes  to  it  when  we  can ;  Init  now  and  then 
the  evil  rises  to  tragic  proportions,  and  all 
proj^erty  interests  are  forced  together  into 
an  ill-assorted  union  in  simple  self-defense. 
Now,  to  cure  this  most  dangerous  condition 
will  require  not  only  long-continued  agita- 
tion and  education  and  the  honest  and  able 
efforts  of  a  whole  united  party ;  it  needs  also 
an  exemption  from  the  kind  of  complication 
which  caused  it,  that  is,  from  war,  or  any 


14  OUR  FOREIGN   POLICY,  AND   ITS 

other  great  national  expenditure  which  its 
ordinary  resources  are  unequal  to.  This, 
perhaps,  will  suggest  a  certain  subtle  connec- 
tion between  Jingoism  and  the  fiat-money 
advocates. 

Still  more  of  a  commonplace  is  the  effect 
upon  legislation  of  our  caucus  system  and  of 
the  mastery  of  the  party  through  the  mastery 
of  the  intricate  machinery  of  the  party.  That 
mastery  will  always  be  better  understood  by 
the  man  with  special  interests  to  serve  than 
by  the  man  who  only  tries  to  serve  his  coun- 
try. How  much  wearisome  talk  there  is  as 
to  the  duty  of  good  citizens  to  go  into  poli- 
tics !  They  do  go  in,  if  they  can  get  in,  but 
their  families  must  be  supported  meanwhile ; 
and  unless  they  too  make  a  living  out  of 
politics,  except  in  rare  instances,  they  will 
find  the  machine  men  in  control.  They  are 
powerless  in  the  grip  of  the  caucus.  If  you 
change  the  machinery  by  some  popular  up- 
rising, and  flatter  yourself  that  by  so  doing 
virtue  is  secured,  you  presently  find  that  the 
rascals  have  got  the  better  of  the  new  machi- 
nery but  too  easily.  If  you  do  away  with  all 
machinery,  and  legislate  by  the  direct  vote  of 
the  people,  you  will  but  substitute  govern- 
ment by  newspaper  for  government  by 
caucus.  If  you  attack  the  evil  at  its  root, 
and  try  to  limit  universal  suffrage  by  quali- 
fications, you  attempt  the  impossible.     The 


EELATION   TO   DOMESTIC   PROBLEMS         15 

tendency  is  all  in  the  other  direction.  "  Fa- 
cilis  descensus  Averno ;  .  .  .  sed  revocare 
graduni,   .   .   .   hoc  opus,  hie  labor  est." 

With  these  various  evils  we  are  face  to 
face.  Even  now  cool-headed  men,  not  too 
optimistic,  are  asking  themselves  whether 
we  are  not  watching  the  breakdown  of  our 
representative  system  of  government.  Un- 
less that  system  can  be  reformed  and  puri- 
fied, the  breakdown  may  come,  and  it  will 
not  be  a  safe  oi*  an  agreeable  spectacle. 

Perhaps  I  have  been  led  aside  from  my 
argument  a  little.  What  I  desire  to  insist 
upon  here  is  the  urgent  and  absolute  neces- 
sity, if  we  are  to  have  a  strong,  a  united,  a 
prosperous  nation,  of  settling  these  vital 
questions,  settling  them  right,  and  settling 
them  soon. 

And  this  leads  us  to  our  main  contention, 
namely,  that  such  settlement  is  absolutely 
impossible  if  the  program  of  the  forwards 
is  carried  out ;  for  we  cannot  set  our  house 
in  order  if  we  must  spend  our  energies  in 
its  defense  or  in  attacks  upon  a  neigh l)or. 

An  aggressive  policy  is  the  forward  policy, 
and  it  leads  to  foreign  complications,  to  ex- 
pensive armaments,  and  to  war.  This  was 
clearly  true  of  the  problems  that  are  now  so 
happily  behind  us.  Slavery  required  slave 
territory  for  expansion  and  for  the  political 
balance.     This  led  to  a  desire  for  Cuba,  to 


16  OUK   FOKEIGN   POLICY,  AND   ITS 

filibustering  in  Nicaragua,  to  the  annexation 
of  Texas,  the  conquest  of  Cahfornia,  and  the 
shame  of  the  Mexican  War. 

The  States'  rights  doctrine  was  also  an 
aggressive  one.  It  bred  civil  war  and 
threatened  the  dissolution  of  the  Union.  And 
this  is  natural;  for  every  policy  which 
threatens  the  rights  of  others,  abroad  or  at 
home,  must  inevitably  lead  to  a  defense 
of  those  rights.  Aggression  implies  resis- 
tance. 

There  is  one  unvarying  demand  in  all  the 
forward  policy,  in  the  cry  for  more  territory, 
in  the  hostility  toward  Great  Britain  and 
Spain,  in  the  assertion  of  our  headship  of 
this  continent,  in  the  claim  of  control  over 
an  isthmus  canal,  and  that  is  for  ships,  sol- 
diers, and  money.  Without  these  this  policy 
is  pure  bluster.  To  make  it  effective  no  one 
can  tell  the  cost.  This  means  heavy  taxa- 
tion. Thousands  of  miles  of  seaboard,  dozens 
of  harbors  and  coast  cities,  must  be  pro- 
vided Avitli  defense.  We  must  build  a  navy 
to  match  England's,  must  maintain  an  army 
to  man  our  defenses,  to  garrison  our  foreign 
possessions,  to  hold  our  canal,  to  warrant 
our  claim  to  dictate  to  a  continent. 

Our  wonderful  progress  in  wealth  has 
been  owing  hugely  to  two  causes,  cheap 
land  and  the  freedom  from  a  standing 
army,  that  millstone  about  the  neck  of  an 


RELATION   TO   DOMESTIC   PROBLEMS         17 

industrial  nation.  As  our  cheap-land  sup- 
ply is  giving  out,  we  are  asked  voluntarily 
to  throw  after  it  the  other  advantage  and 
assume  the  military  burden. 

We  spent  in  189G  upon  our  army  and 
nav}^  establishments  seventy-eight  millions 
of  dollars.  Yet  in  return  for  this  large 
expenditure  our  navy  stands  only  fifth  in 
armored  ships  and  seventh  in  officers  and 
men,  while  the  army,  with  less  than  twenty- 
five  thousand  enlisted  men,  is  little  more 
than  a  police  force  to  secure  internal  secu- 
rity. Simply  <loubling  the  army  and  trebling 
the  navy  would  cost  one  hundred  millions 
additional  yearly,  without  counting  a  system 
of  coast  and  harbor  defense.  Even  with 
this  increase  we  should  be  poorly  equipped 
to  carry  on  a  foreign  war.  To  tell  the  truth, 
our  enormous  pension  expense  is  our  sub- 
stitute for  the  cost  of  a  military  establish- 
ment, and  could  not  be  maintained  if  that 
were  assumed. 

Is  it  not  clear  that  the  tariff  question,  for 
instance,  must  be  immensely  complicated  l)y 
an  increase  in  taxation  sufficient  to  carry 
out  this  new  policy?  It  could  not  be  settled 
on  its  merits.  The  need  of  revenue  would 
affect  every  schedule,  and  hardly  to  the  ad- 
vantage of  the  manufacturer,  for  the  duty 
must  be  low  enough  to  admit  goods  fi-eely 
in  order  to  be  productive.     Or  else  internal 


18  OUR   FOREIGN   POLICY,  AND   ITS 

taxation  and  an  income  tax  must  be  re- 
sorted to. 

But  this  is  not  the  worst  of  its  results. 
The  forward  policy  tends  to  keep  us  con- 
stantly in  hot  water  in  our  foreign  relations. 
Already  we  have  a  "  question,"  a  ''  diffi- 
culty," with  Germany  over  the  interpreta- 
tion of  the  most-favored-nation  clause,  with 
China  in  regard  to  innnigration,  with  Canada 
about  the  seals,  with  Spain  about  Cuba,  with 
the  Japanese  over  their  rights  in  Hawaii. 
But  in  the  brave  time  coming  we  shall  show 
our  mettle  to  every  state  in  turn  which  tries 
to  limit  our  pretensions.  If  this  leads  to 
rumors  of  war,  as  we  know  by  hard  expe- 
rience, our  trade  suffers.  It  is  no  exaggera- 
tion to  say  that  the  consequences  of  the 
Venezuelan  policy  led  straight  to  Bryanism, 
for  the  apprehension  of  war  with  England 
crushed  the  promising  trade  revival,  and 
business  depression  led  to  political  upheaval. 

If  our  aggressiveness  should  lead  to  war 
itself,  we  are  tempted  to  issue  forced  loans 
and  call  them  money.  The  discontent  from 
hard  times,  the  distress  and  loss  of  credit 
from  war,  either  one,  would  imperil  the  hope 
of  establishing  a  sound  financial  system. 

There  is  another  connection  between  burn- 
ing questions  of  foreign  policy  and  the  solu- 
tion of  domestic  problems  which  is  no  less 
certain  and  even  more  insidious.     The  old 


RELATION   TO   DOMESTIC  PROBLEMS         19 

solidity  of  our  political  parties  has  been 
broken  in  upon.  AVe  have  Gold  Republicans 
and  ISilver  Kepublieans,  their  dift'erences  too 
deep  for  common  action.  We  have  Silver 
Democracy  and  Populistic  Democracy,  and 
Populism  of  several  shades.  And  we  have 
a  growing  tendency  toward  that  indepen- 
dence which  picks  and  chooses  its  candidates 
and  its  principles  without  regard  to  consis- 
tency or  party  loyalty.  This  state  of  flux,  of 
instability,  is  the  despair  of  the  politician. 
What  a  godsend  to  him,  therefore,  would  be 
such  a  foreign  embroilment  as  would  replace 
or  at  least  overshadow  in  the  party  platform 
and  in  the  popular  mind  these  diflicult  in- 
ternal problems  !  To  divert  the  people  from 
the  real  questions  at  issue ;  to  excite  their  war- 
like desires  by  emphasizing  some  petty  injury 
or  fancied  danger ;  to  sweep  them  into  a  vor- 
tex of  passion,  miscalled  patriotism — what  a 
golden  opportunity  for  the  demagogue,  but 
what  a  detriment  to  good  government  and 
useful  legislation !  "  Patriotism  "  has  already 
been  given  a  heavy  load  to  carry.  How  often 
during  the  past  year  or  two  the  hesitancy 
of  a  thoughtful  mind  to  recognize  Cuban 
belligerency  or  to  intervene  for  Cuban  inde- 
pendence, to  face  England  down  in  Vene- 
zuela, to  play  the  bully  whenever  and 
wherever  opportunity  offers,  has  been  de- 
nounced as  a  want  of  j^atriotism !     80  that 


20  OUR   FOREIGN   POLICY,  AXD    ITS 

the  conservative  citizen  who  deplores  the 
effect  of  foreign  adventure  upon  his  coun- 
try's prosperity  and  business  is  declaimed 
at  from  the  lofty  heights  of  patriotic  fervor, 
until  he  too  begins  to  think  that  black  is 
white,  and  wrong  is  right,  and  love  of 
country  means  love  of  a  row.  Yet  the 
demagogue  is  not  the  real  patriot,  nor  is 
truth  falsehood.  So  the  perplexed  citizen 
betakes  himself  to  his  "  Faerie  Queene,"  and 
draws  temporary  solace  from  the  piteous 
story  of  Una  and  the  red-cross  knight, 
buft'eted  by  the  wiles  of  Archimago. 

The  g'uilefull  great  eiicliaunter  parts 
The  Rederosse  knight  from  Truth : 

Into  whose  stead  faire  Falshood  steps 
And  workes  him  woeful!  ruth. 

The  extreme  difficulty  of  settling  domestic 
questions  of  vital  importance  rightly  if  they 
are  complicated  by  foreign  embroilment ;  the 
positive  danger  to  the  integrity  of  our  poli- 
tics if  the  pseudo-patriotic  chord  can  be 
played  upon  at  will  by  the  demagogues ;  the 
mistake  of  substituting  foreign  adventure 
for  internal  development  in  our  country's 
advancement— these  are  the  reasons  for  be- 
lieving that  the  old  way  is  the  best  way. 

Danger  from  the  aggressions  of  other  coun- 
tries, in  my  judgment,  does  not  really  exist. 


RELATION    TO    DOMESTIC   PROBLEMS         21 

This  luitioii  is  too  populous,  too  rich,  too 
strong,  potentially,  in  war,  as  well  as  too  iso- 
lated, to  fear  for  its  own  integrity.  Its  dan- 
gers lie  in  its  own  follies,  its  own  ignorance, 
its  own  blunders.  With  a  moderate  settled 
tariff,  a  sound  and  stable  monetary  system,  a 
conservative  diplomacy  l)acked  by  a  rational 
method  of  settling  its  disputes  by  arbitra- 
tion, we  may  build,  on  the  foundations  which 
our  fathers  laid,  the  fair  structure  of  an  en- 
during state,  which  shall  continue  to  be  the 
world's  great  object-lesson  in  self-govern- 
ment, whose  instrument  shall  be  the  plow- 
share, not  the  sword,  which  shall  be  trusted 
by  the  nations,  and  which,  through  the  arts 
of  peace,  the  skill  of  its  artisans,  the  honest 
toil  of  its  farmers,  the  wide-spread  education 
of  its  people  of  every  degree,  may,  in  God's 
providence,  attain  the  only  kind  of  headship 
worth  having,  that  of  character  and  of 
worth. 


THE   CONSEQUENCES  OF  CUBAN 
BELLIGERENCY 


Yale  Law  Journal, 
March,  1896 


THE   CONSEQUENCES   OF   CUBAN 
BELLIGERENCY 

SOINIE  timo  since  tliore  appeared  in  a 
leading  New  York  paper  tliis  statement : 
"  Sefior  Palma,  now  delegate  of  the  Cuban 
revolutionary  party  in  the  United  States, 
will  be  the  accredited  minister  of  the  new 
republic  at  Washington,  if  President  Cleve- 
land acknowledges  the  belligerency  of  Cuba." 
It  is  hardly  probable  that  any  student  of  our 
foreign  relations  would  be  deceived  by  so 
palpable  a  blunder  as  this.  The  recognition 
of  belligerency,  when  accorded  to  a  people 
trying  to  fight  their  way  up  to  statehood, 
carries  with  it  no  right  of  diplomatic  inter- 
course. If  it  did,  it  would  be  barely  distin- 
guishable from  a  recognition  of  indepen- 
dence. But  there  are  various  consequences — 
positive  and  negative — which  do  flow  from 
the  recognized  belligerent  status,  which  may 
not  be  so  clear,  and  I  have  thought  it  might 
be  of  interest  to  see  them  briefly  set  forth. 
Not  that  a  recognition  of  the  Cuban  bel- 

25 


26  THE   CONSEQUENCES   OF 

ligerents  is  at  once  necessary  or  proper. 
That  is  not  a  matter  to  be  decided  by  senti- 
ment. If  one  state  takes  the  part  of  an 
insurgent  body  in  another,  through  sym- 
pathy with  its  wrongs,  and  desires  to  aid  it, 
that  is  intervention,  not  recognition.  The 
recognition  of  Cuban  belligerency  should  be 
governed  by  the  interests  of  this  country 
which  are  involved;  by  the  ascertained 
existence  of  a  civil  and  military  organiza- 
tion, responsible  for  its  acts  and  conforming 
to  the  rules  of  war ;  and  by  the  gravity  and 
character  of  the  contest.  Or,  to  put  it  more 
specifically,  if  the  United  States  finds  its 
trade  considerably  affected  by  the  acts  of 
war  of  a  new  de  facto  state,  possessing  a 
definite  territory  where  the  old  sovereign  no 
longer  controls,  it  recognizes  that  new  body 
as  a  belligerent,  and  holds  him  responsible 
for  his  conduct  for  its  own  sake. 

In  regard  to  these  essential  facts  in  Cuba 
it  is  rather  difficult  to  find  out  the  truth. 
Until  the  Cubans  possess  some  of  the  ports 
of  the  island  and  carry  on  war  by  sea,  our 
shipping  interests  cannot  be  much  involved. 
On  the  other  hand,  there  must  be  losses  of 
sugar  and  tobacco  property  in  the  interior 
belonging  to  Americans,  the  responsibility 
for  which  will  need  determination. 

However,  it  is  not  the  expediency  of  a 
recognition  of  Cuban  belligerency,  but  the 


CUBAN   BELLIGERENCY  27 

legal  eousequences  flowing  from  such  recog- 
nition, that  I  would  here  discuss.  Perhaps 
a  consideration  of  the  latter  will  aid  in  de- 
ciding the  former.  As  between  the  parent 
state  and  the  insurgent  body,  the  relations 
are  not  changed  by  an  outside  recognition 
of  the  latter's  belligerency.  In  theory  the 
insurgents  may  be  considered  traitors  and 
be  dealt  with  in  accordance  with  municipal 
law ;  but  in  point  of  fact  the  executive  branch 
of  the  state  will  probably  accord  them  the 
rights  of  belligerents,  being  guided  first  by 
the  dictates  of  humanity,  and  second  by  the 
danger  of  retaliation.^ 

But  as  between  the  insurgent  body  and 
other  powers,  a  new. relation  is  introduced, 
that  of  neutrality.  The  revolutionary  flag 
will  be  recognized,  so  that  ships  bearing  it, 
in  spite  of  the  lack  of  ordinary  clearance 
papers,  will  be  received  at  foreign  ports  as 
having  a  definite  standing.  Thus,  early  in 
our  Civil  War,  the  Sumter  put  in  at  Cura(;ao, 
Holland  having  recognized  the  belligerency 
of  the  Confederacy.  The  commission  of  the 
Smnter^s  captain  was  accepted  as  granted  by 
a  lawful  belligerent,  and  the  ship  admitted 
on  the  same  footing  with  ships  of  the  North, 
though  Mr.  Seward  tried  to  fasten  a  piratical 
character  upon  her.  A  better  standing  will 
be  gained  for  the  borrowing  of  money, — an 

1  Case  of  the  Amy  Warwick,  2  Black.  635. 


28  THE   CONSEQUENCES   OF 

act  which  is  based  upon  future  expectations, 
— because  the  recognition  is  a  stamp  of  suc- 
cess up  to  a  certain  point,  and  therefore  en- 
courages those  expectations. 

The  insurgent  men-of-war  will  be  entitled 
to  the  same  hospitalities  as  well  as  limited  by 
the  same  restrictions  in  neutral  ports  as  the 
ships  of  the  parent  state,  except  so  far  as 
these  may  be  modified  by  previous  treaty. 
For,  not  having  acquired  statehood  and  the 
right  of  negotiation,  the  revolutionary  body 
can  have  made  no  treaties.  Neutrality  thus 
becomes  a  real  and  practical  thing,  and  its 
machinery — neutrality  laws,  foreign  enlist- 
ment acts,  or  whatever  other  name  such 
regulations  may  bear — is  put  into  operation. 
If  a  "  recognized  "  insurgent  blockades  a  port 
after  due  notification,  the  neutral  submits  to 
such  blockade.  It  admits  his  right  to  search 
for  and  seize  contraband  articles  belonging  to 
its  subjects  and  destined  for  his  enemy's  use, 
on  the  high  seas.  The  insurgent  thus  gains 
considerably  from  recognition  of  his  belliger- 
ency. He  gains  in  caste ;  he  gains  in  rights ; 
he  gains  in  the  facilities  for  carrying  on  war. 

But  his  enemy  gains  as  well  and  as  much, 
also,  with  reference  to  third  parties. 

A  state  of  war  is  declared  to  exist.  As  a 
lawful  belligerent  the  parent  state  may  block- 
ade, and  search  and  capture  for  carr^dng  con- 
traband, and  exercise  all  the  rights  of  war 


CUBAN    BELLIGERENCY  29 

and  insist  upon  all  the  neuti-al  duties,  wliicli 
during  an  unrecognized  insurrection  would 
not  come  into  being. 

Thus,  during  the\"ivil  War  of  18(51-65,  the 
blockade  of  the  Southern  ports,  a  powei'ful 
and  unmatched  weapon  in  the  hands  of  the 
North,  was  a  belligerent  right,  its  observance 
a  neutral  dutj^,  which  foreign  recognition  of 
Southern  belligerency  made  possible.  For 
blockade  is  a  war  right  solely.  When  Presi- 
dent Lincoln  laid  the  blockade  he  virtually 
recognized  the  Ijelligerency  of  the  Confeder- 
ate States  himself.  During  war,  too,  the 
neutral  state  is  responsible  for  the  conduct  of 
its  subjects ;  it  is  held  to  a  stricter  and  more 
exact  accountability  than  it  can  be  as  a  mere 
friend  regarding  the  internal  disorders  of  a 
fellow-State  with  very  possible  complacency. 

There  is  another  and  most  valuable  conse- 
quence of  the  recognition  of  belligerency 
which  the  parent  state  enjoys :  it  is  no  longer 
responsible  for  the  acts  of  the  insurgents. 
They  may  injure  the  i)erson  or  destroy  the 
property  of  neutral  subjects  by  land  or  by 
sea,  and  their  de  facto  government  is  alone 
answerable.  This  is  a  tremendous  weight 
oft'  the  shoulders  of  the  existing  state.  If  the 
insurgent  body  dissolves,  its  responsibility 
for  such  damage  vanishes.  It  is  the  neutral 
who  is  injured  that  suffers  without  redress. 

Yet  that  neutral  has  a  certain  interest,  as 


30  THE   CONSEQUENCES   OF 

well  as  the  other  two  bodies,  in  the  results 
of  this  recognition.  A  state  of  war  is  de- 
clared to  exist  between  two  friendly  belliger- 
ent bodies.  For  such  a  state  of  things  its 
neutrality  laws  provide.  Its  citizens  can  be 
told  just  what  they  can  deal  in  without 
seizure  as  contraband.  Certain  seaports 
are  either  open,  or  closed  by  blockade.  It 
knows  just  what  its  duties  are.  The  air  is 
cleared.  A  state,  jealously  watching  over 
the  welfare  of  its  subjects  and  their  com- 
merce, desires  most  of  all  to  know  exactly 
the  conditions  which  apply  to  them.  And 
it  may  have  a  certain  sympathy  for  a  strug- 
gling, perhaps  a  long-suffering,  community, 
which  finds  exj)ression  in  this  way. 

There  are  thus  three  sets  of  interests  which 
are  affected  and  altered  by  recognition  of 
belligerency— those  of  the  insurgent  as  re- 
gards neutrals,  of  the  parent  state  as  regards 
neutrals,  and  of  the  neutrals  as  affected  by 
a  state  of  war.  Let  us  try  to  apply  these 
principles  to  the  case  of  Cuba. 

The  insurgents  would  have  a  better  chance 
of  selling  bonds,  a  flag  recognized  by  other 
states,  and  war  rights  against  neutral  com- 
merce. 

Spain  would  hold  the  United  States  gov- 
ernment to  a  stricter  accountability  in  the 
prevention  of  filibustering  expeditions  and 
the  detention  of  ships  capable  of  being  used 


CUBAN    BELLIGERENCY  31 

for  war.  For  all  sneli  breaches  of  neutrality 
the  United  States  would  be  responsible  in 
damages  unless  it  could  prove  that  it  had 
exercised  reasonable  care  and  diligence. 

Spain  also  would  possess  the  rights  of  a 
belligerent  against  United  States  commerce, 
which  is  not  the  case  at  present.  Thus,  if 
the  Cubans  succeeded  in  capturing  some  or 
all  of  the  seaport  towns  of  the  island,  Spain, 
having  control  of  the  sea  with  her  navy, 
could  and  probably  would  shut  out  all  neutral 
trade  from  them  through  blockade.  She 
would  have  the  right  of  capturing  all  war 
material  shipped  from  this  country  to  Cuba 
for  the  use  of  the  insurgents,  whatever  the 
ownership,  even  on  the  high  seas.  In  en- 
forcing these  rights  her  gunboats  could  stop, 
visit,  and  search  any  commercial  vessel  of 
the  United  States.  The  Allianga  incident 
would  often  be  repeated,  but  on  the  high 
seas,  while  remonstrance  or  resistance  would 
be  unlawful. 

Again,  Spain  would  be  relieved  of  re- 
sponsibility for  all  damage  done  by  the 
insurgents  to  the  property  of  neutral  sub- 
jects in  Cuba,  while  at  present  in  such  case 
it  is  probable  that  she  could  be  held  liable. 

The  United  States,  in  turn,  confronted  by 
a  war  between  two  lawful  belligerents,  must 
duly  respect  their  war  rights.  Its  mer- 
chantmen must  keep  away  from  blockaded 


32  THE  CONSEQUENCES   OF 

ports,  must  submit  to  exasperating  search, 
can  carry  on  trade  in  contraband  only  under 
penalty  of  the  loss  of  the  goods,  and  often  of 
the  ships  as  well,  if  caught  in  the  act.  Its 
citizens  owning  property  in  Cuba  would 
find  it  indistinguishable  from  belligerent 
property  and  subject  to  all  the  casualties  of 
war.  Its  citizens  who  evaded  our  laws  and 
sought  service  in  the  revolutionary  army 
would  lose  their  right  of  protection  and  must 
expect  the  same  treatment  that  the  insur- 
gents met  with.  And  its  trade  with  the 
island  in  certain  contingencies  would  be 
entirely  cut  off,  so  that  the  interchange  of 
breadstuffs  and  manufactures  for  sugar  and 
tobacco  would  be  as  dead  as  the  cotton  trade 
between  England  and  the  South  during  our 
Civil  War,  kept  alive  only  by  a  few  cargoes 
which  ran  successfully  the  risks  of  blockade. 
The  treaty  made  with  Spain  more  than 
a  century  ago,  except  those  articles  which 
are  obsolete,  has  also  a  bearing  on  our  sub- 
ject, for  its  specific  provisions  must  be  added 
to  the  general  rules  of  international  law. 
Thus  the  list  of  articles  which  shall  be  con- 
sidered contraband  is  there  laid  down,  and 
Article  XIV  forbids  the  subjects  of  either 
state  to  accept  letters  of  marque  from  an 
enemy  of  the  other,  under  penalty  of  being 
punished   as   pirates.     So   that   no   United 


CUBAN  BELLIGERENCY  33 

States  citizen  could  fit  out  a  privateer  in 
the  Cuban  interest.  He  would  be  violating 
treaty  obligation  and  our  own  statutes  as 
well. 

Bearing  these  legal  consequences  in  mind, 
it  is  probable  that  our  recognition  of  Cuban 
belligerency  would  help  Spain  first  and  most, 
the  Cuban  cause  secondarily,  and  would  be 
decidedly  injurious  to  the  interests  of  the 
United  States,  Recognizing  this,  one  of  the 
international  jurists  in  the  Senate  advocates 
a  recognition  of  independence  rather  than  of 
belligerency.  That,  of  course,  would  be  a 
recognition  of  a  fact  which  is  non-existent, 
and  must  be  avowedly  a  war  measure  aimed 
at  Spain.  France  did  this  in  1778,  by  way 
of  expressing  her  hostility  to  England,  and 
war  with  England  resulted  as  a  matter  of 
course.  What  the  senator's  cause  of  war 
with  Spain  is,  he  does  not  divulge.  It  is  a 
source  of  wonder  that  no  one  has  yet  in- 
voked the  Monroe  Doctrine  in  the  matter. 

Thus  it  would  seem  to  be  for  the  interest 
of  the  United  States  to  let  the  present  status 
in  Cuba  continue,  rather  than  to  recognize 
the  insurgents'  belligerency,  an  act  which 
would  be  quite  at  variance  with  our  own 
precedents.  If  recognition  should  be  deter- 
mined upon,  however,  Spain,  though  she 
might  feel  aggrieved,  would  not  really  be 


34  CUBAN  BELLIGERENCY 

injured ;  she  would  not  be  put  in  a  relatively 
worse  position  for  coercing  Cuba.  But  to 
couple  with  this  recognition  a  request  to 
Spain  to  grant  the  independence  of  Cuba 
is  a  slap  in  the  face. 


OUR  DUTY  TO   SPAIN 

Yale  Law  Journal, 
March,  1896 


OUR   DUTY   TO   SPAIN 

THE  complaints  which  the  Spanish 
ministry  is  said  to  have  made  to  our 
government,  of  its  laxness  in  preventing  fili- 
bustering expeditions,  have  called  out  from 
the  Secretary  of  the  Navy  an  interesting 
rejoinder.  The  statement  of  Mr.  Long  at- 
tempts to  show,  on  the  part  of  the  United 
States,  a  diligence  in  preserving  its  neutrality 
that  is  not  only  "  due,"  but  even  unusual 
under  the  circumstances.  This  correspon- 
dence is  not  yet  published.  The  mere  fact  of 
its  existence  and  probable  tenor  is  known. 
We  cannot  scrutinize  the  assertions  of  fact 
and  law  and  precedent  therein  contained. 
Nevertheless,  perhaps  we  may  use  the  inci- 
dent to  advantage  as  a  peg  upon  which  to 
hang  two  inquiries,  the  one  relating  to  fact, 
the  other  to  law;  the  one  recalling  a  bitter 
national  controversy  long  since  settled,  the 
other  concerning  the  duties  of  a  state  in 
view  of  an  insurrection  against  a  friendly 
power,  an  insurrection  which  cannot  well  be 
recognized  as  belligerent. 

37 


132555 


38  OUE   DUTY   TO    SPAIN 

What  a  faint  and  far-away  memory  that 
phrase  "  due  diligence  "  suggests !  And  yet 
in  the  Alahama-elaims  arbitration,  a  quarter- 
century  ago,  national  responsibility  and  mil- 
lions of  dollars  in  damages  rested  ujDon  its 
interpretation. 

The  military  engines  which  the  Southern 
Confederacy  bought  in  neutral  England  pro- 
longed the  war,  destroyed  or  drove  to  other 
flags  the  commerce  of  the  North,  and  gave 
rise  to  the  most  serious  complaints.  Just 
so  to-day,  those  military  suj)plies  which  Cuba 
buys  from  the  manufacturers  of  the  United 
States  are  prolonging  the  insurrection,  may 
make  independence  possible,  and  do  much 
to  disturb  our  friendly  relations  with  Sixain. 
They  likewise  may  serve  as  a  basis  for  claims 
for  damages  in  no  very  distant  future.  There 
is  an  apparent  parallelism  between  the  two 
cases.     Is  it  a  real  one  ? 

The  salient  features  of  our  relations  with 
neutral  powers  during  the  Civil  War  were 
these :  the  recognition  of  Southern  belliger- 
ency by  the  states  whose  interests  were 
affected,  which  thereby  declared  their  neu- 
trality ;  the  application  of  the  rules  of  mari- 
time capture  to  them  by  both  sides  in  the 
war  thus  recognized;  the  sale  of  military 
supplies  to  the  Confederates  by  neutral  mer- 
chants, the  onus  of  preventing  their  delivery 
resting  uj)on  the  shoulders  of  the  Northern 


OUR   DUTY   TO    SPAIN  39 

government;  finally,  the  desptiteli  of  armed 
expeditions  from  British  soil,  conpled  with 
their  illegal  armament  and  enlistment  of  men 
in  British  colonial  ports,  with  great  damage 
to  American  commerce  resnlting.  There 
was  a  Enropean  sympathy  for  the  Southern 
cause  also,  which  was  galling  to  the  North ; 
but  it  is  the  unneutral  act,  not  the  unneigh- 
borly  sentiment,  that  international  law  takes 
cognizance  of. 

Turn  now  to  our  relations  with  Cuba. 

As  the  Cuban  ports  of  importance  are  all 
in  Spanish  hands,  our  shipping  interests 
have  not  been  so  affected  as  to  make  the 
recognition  of  Cuban  belligerency  necessary. 
Therefore  there  has  been  no  blockade,  no 
right  to  capture  contraljand  on  the  high  seas, 
no  right  of  search  of  American  ships  except 
within  Sj)anish  jurisdiction.  As  in  Great 
Britain  in  our  Civil  War,  there  has  been  free 
sale  of  military  supplies  in  our  markets  to 
the  Cubans,  but  with  the  assumption  that 
the  burden  of  preventing  them  from  reach- 
ing their  destination  rested  upon  Spain. 
And  lastly,  armed  expeditions,  that  is,  the 
combination  of  munitions  of  war  with  men 
enlisted  to  use  them,  have  been  checked  and 
in  large  measure  prevented  l)y  our  govern- 
ment, at  great  cost  and  with  much  trouble, 
by  many  arrests,  several  trials,  and  a  few 
convictions,  so  that  it  can  honestly  say,  as 


40.  OUR  DUTY   TO    SPAIN 

Secretary  Long  does  say,  that  it  has  exer- 
cised diUgence  in  this  regard. 

American  sympathy  for  the  Cuban  cause 
exists.  It  is  natural,  even  inevitable.  It  is 
galling  to  Spain.  But  we  say  again  that  ex- 
pressions of  sympathy  are  not  within  the 
cognizance  of  the  law. 

Reviewing  the  two  cases,  we  see  that  they 
are  not  parallel,  but  in  strong  contrast. 

The  one  was  war,  with  neutral  duties  and 
belligerent  rights.  The  other  is  an  insur- 
rection, involving  no  neutral  obligations, 
strictly  speaking,  and  no  belligerent  rights. 
The  one  put  the  duty  of  preventing  contra- 
band articles  from  reaching  their  destination 
where  it  belonged.  In  the  other,  Spain  ap- 
pears to  shirk  this  duty ;  to  try  and  place  it 
upon  the  wrong  shoulders.  Negligence  in 
the  Alahania,  Florida,  and  Shenandoah  cases 
made  Great  Britain  liable  for  the  damage 
they  caused,  while  no  such  scandal  in  con- 
nection with  Cuba  can  be  brought  home  to 
the  United  States.  Its  seaboard  is  long  and 
intricate,  the  Cuban  coast  near,  absolute 
prevention  of  hostile  exj^editions  well-nigh 
impossible.  But  l)y  the  use  of  both  navy 
and  revenue  service  the  coast  has  l)een  so 
efficiently  policed  as  to  make  the  despatching 
of  such  expeditions  very  hazardous  and  very 
uncertain.  Due  diligence  has  been  observed. 
Can  more  be  demanded  ? 


OUR  DUTY   TO    SPAIN  41, 

And  now  for  the  second  inquiry. 

What  is  the  law  to  govern  a  state  in  its 
relations  to  a  mere  insurrection  in  a  friendly 
country  ? 

Is  a  state's  own  statutory  law  the  sum 
and  measure  of  its  duty  in  the  case  ? 

How  far  does  the  character  of  lawful  com- 
merce attach  to  trade  in  military  supplies 
with  the  insurgents  I 

Such  questions  as  these  have  forced  them- 
selves upon  l)otli  executive  and  judicial  de- 
partments in  the  United  States  within  the 
past  three  years.  But  there  must  naturally 
be  a  difference  in  their  point  of  view.  The 
executive  is  guided  by  the  general  principles 
of  international  law,  and  by  its  own  convic- 
tion of  national  policy;  while  the  courts, 
though  also  applying  international  law,  must 
be  specifically  bound  to  employ  and  interpret 
the  statutes  enacted  for  the  enforcement  of 
that  law.  Violation  of  the  rights  of  another 
power,  by  the  executive,  calls  for  redress.  So, 
too,  insufficiency  of  the  statute,  as  inter- 
preted, founds  a  valid  claim  for  damages. 
But  an  unpalatable  interpretation  of  a  statute 
is  not  a  ground  for  complaint,  unless  bad 
faith  can  be  proved.  Where  an  insurrection 
breaks  out  in  another  state  it  is  to  be  re- 
marked that  one's  own  political  relations 
with  that  state  are  necessarily  affected,  for 
it  involves  the  commerce  and  the  property 


42  OUR  DUTY   TO   SPAIN 

rights  of  our  citizens.  If  of  a  character  to 
warrant  it,  the  insurrection  will  be  recog- 
nized as  IjcUigerent.  We  are  presupposing, 
however,  that  for  one  reason  or  another  this 
course  is  inadmissible.  There  results  no 
recognized  war.  There  can,  therefore,  be  no 
neutrality  (since  neutrality  implies  war),  nor 
any  neutral  duties.  We  have  so-called  neu- 
trality acts,  which  operate  without  war,  it  is 
true,  but  the  "  neutrality "  is  here  merely  a 
convenient  name,  and  not  a  proof  of  status. 
The  same  thing  in  England  is  called  a  For- 
eign Enlistment  Act. 

But  though  there  may  be  no  neutral  duties 
and  rights,  technically  speaking,  there  are 
nevertheless  the  duties  which  every  state 
owes  to  every  other ;  there  are  the  rights  of 
commercial  freedom  which  every  state  en- 
joys, and  there  is  the  right  of  self-defense, 
the  duty  of  maintaining  its  own  integrity, 
which  the  insurgents'  sovereign  possesses. 

These  fundamental  rights  do  not  depend 
for  their  operation  upon  any  formal  recogni- 
tion of  belligerency.  Nor  can  I  see  that  they 
are  called  into  being  or  changed  in  any  way 
by  the  newfangled  recognition  of  insur- 
gency— a  phrase  ascribed  to  the  late  Dr. 
Wharton.  When  an  internal  disturl)ance  in 
a  friendly  state  is  serious  enough  to  affect 
another  state's  interests,  the  executive  con- 
sciousness of  that  fact  finds  expression.     In 


OUR   DUTY   TO   SPAIN  43 

our  own  case  the  form  of  expression  will 
usually  be  a  reference  in  some  message  of 
the  President  to  give  notice  of  the  facts  and 
warn  us  to  obey  our  own  statutes.  This  is 
what  is  meant  by  the  ttn-m  "  recognition  of 
insurgency." 

Now  as  to  tlie  private  trade  in  war  mate- 
rial. It  is  certain  that  such  trade  with  an 
insurgent  body  is  at  least  as  lawful  and 
unrestricted  as  with  a  recognized  belligerent. 
The  usage  in  tlie  latter  case  is  unquestioned. 
Private  trade  in  contraband  is  permitted. 
Even  where  carrying  contraband  is  forbid- 
den by  executive  order,  as  is  sometimes  done/ 
this  simj^ly  means,  in  actual  practice,  that 
the  trade  is  liable  to  the  penalty  of  confisca- 
tion, if  the  offender  is  caught  by  the  injured 
belligerent.  The  neutral  is  never  held  re- 
sponsible for  the  traffic  in  contraband  so 
long  as  it  is  purely  a  commercial  transaction. 
Accordingly,  a  body  of  law  has  grown  uj)  to 
govern  such  cases.  States  define  contraband 
by  treaty.  Such  goods  may  be  seized,  unless 
the  treaty  substitutes  preemption  for  confis- 
cation. They  may  be  seized  on  the  high  seas 
even,  if  their  hostile  destination  is  clear.  In 
certain  cases  the  ship  is  lial)le  also.  But  the 
burden  of  prevention  is  not  saddled  upon 
the  neutral.      The  law  and  usage  are  the 

1  E.  g.,  by  both  British  and  Spanish  proclamations   of 
neutrality  at  the  outset  of  our  Civil  War. 


44  OUE  DUTY   TO   SPAIN 

resultant  of  two  principles — the  freedom  of 
neutral  trade,  and  the  belligerents'  right  of 
self-defense. 

In  the  case  of  insurgency  rather  than  bel- 
ligerency, the  only  question  is  whether  the 
freedom  of  trade  in  war  material  is  not  en- 
larged, whether  the  right  of  seizure  is  not 
restricted  to  the  coast  sea  of  the  insurgents' 
sovereign.  In  the  case  of  an  armed  exjDedi- 
tion  like  the  Virginius  there  is  authority  and 
reason  for  believing  that  search  and  seizure 
on  the  high  seas  are  warranted  on  the  ground 
of  self-defense.  A  similar  claim  to  prevent 
the  trade  in  war  material  would  probably 
not  be  submitted  to.  However,  for  our 
present  purposes  it  is  not  necessary  to  dis- 
cuss this  point.  It  is  enough  to  emphasize 
the  general  law  that  no  government  can  be 
held  accountable  for  its  citizens'  traffic  in 
military  supplies  not  furnished  to  a  visiting 
man-of-war,  nor  in  the  hands  of  an  expedi- 
tionary force.  Its  duty  is  fulfilled  when  its 
subjects  are  warned  of  the  risk  of  loss  which 
they  incur  by  engaging  in  it. 

The  distinction  already  referred  to,  be- 
tween contraband  goods  which  are  mere 
commodities,  and  the  same  goods,  it  may 
be,  with  an  organized  body  of  men  to  use 
them,  is  a  perfectly  reasonable  one.  It  is 
the  distinction  between  trade  and  an  armed 
expedition — between  peace  and  war. 


OUR   DUTY   TO    SPAIN  45 

An  insurrection  breaks  out  iu  oue  of  two 
states  wliicli  are  at  peace.  The  other  is 
bouud  to  prevent  all  jjersons  within  its  juris- 
diction from  assisting  to  wage  war  against 
its  friend.  Where  a  ship  is  armed  or  men 
enlisted  and  an  expedition  set  on  foot,  with 
intent  to  assist  the  insurgent  cause,  that  is 
waging  war.  If  such  acts  are  made  possi- 
ble through  the  negligence  of  the  authori- 
ties, through  lack  of  appropriate  legislation, 
or  through  a  judicial  breakdown  involving 
more  than  an  unpalatable  interpretation  of 
the  law,  they  are  unfriendly  and  a  ground 
for  damages. 

This,  then,  in  its  simplest  terms,  is  the 
sum  of  the  rights  and  duties  which  obtain 
between  the  United  States  and  Spain  at  the 
present  time:  to  carry  on  trade  with  the 
Cubans,  even  in  w^ar  material,  subject  to  the 
Spanish  right  of  seizure  within  their  own 
coast  sea;  to  prevent  our  soil  from  being 
made  a  base  from  which  Cuban  sympathizers 
wage  war  against  Spain,  These  two  are 
the  cardinal  points,  under  the  general  prin- 
ciples of  the  law  of  nations.^  Such  general 
principles  in  a  vital  matter  like  this  should 
and  do  find  expression  and  sanction  in  local 

1  The  simplicity  of  the  rule  may  be  complicated  by  actions 
which  involve  a  violation  or  evasion  of  our  revenue  laws. 
Thus  a  ship  with  contraband  and  a  commercial  crew  may 
clear  for  Havana,  whereas  her  real  destination  is  inferred 
to  be  some  landiug-place,  not  a  port  of  entry,  on  the  Cuban 


46  OUE   DUTY   TO   SPAIN 

legislation,  aud  such  statutes  are  interpreted 
and  enforced  by  the  courts.  Neither  insuffi- 
ciency of  the  law,  nor  difficulty  in  enforcing 
it,  will  excuse  a  government.  As  our  diplo- 
matists kept  urging  upon  England  in  the 
Alahama  discussion,  "  If  the  law  is  insuffi- 
cient, amend  it ;  if  sufficient,  enforce  it." 

Our  next  inquiry  thus  relates  to  the  ade- 
quacy of  our  own  statutes,  and  to  the  good 
faith  and  effectiveness  of  their  interpretation 
and  enforcement. 

The  statutes  applicable  to  such  aid  as 
Cuba  has  sought  are  two,  Sections  5283  and 
5286  of  the  Revised  Statutes  of  the  United 
States. 

The  first  is  aimed  at  "every  person  who, 
within  the  limits  of  the  United  States,  fits 
out  and  arms,  or  attempts  to  fit  out  and 
arm,  or  procures,  .  .  .  etc.,  or  is  concerned 
in,  .  .  .  etc.,  with  the  intent  that  such  ves- 
sel shall  be  employed  in  the  service  of  any 
foreign  prince  or  state,  or  of  any  colony,  dis- 
trict, or  people,  to  cruise  or  commit  hostili- 
ties against  the  subjects,  citizens,  or  prop- 
erty of  any  foreign  prince  or  state,  or  of  any 
colony,  district,  or  people,  with  whom  the 
United  States  are  at  peace.  ..." 

coast.  In  this  eonnt'ction  the  Itata  case  at  San  Diego  may 
be  recalled,  which  ship  took  French  leave  of  the  authorities, 
aud  failed  to  comply  with  the  port  regulations  ;  yet  the  court 
acquitted  her  of  the  charge  of  violating  the  neutrality 
statute. 


OUR   DUTY  TO   SPAIN  47 

Here  the  offense  is  to  be  committed  by 
meaus  of  a  vessel,  and  that  vessel  must  be 
armed.  On  this  ground  some  prosecutions 
have  failed.  Another  point  is  that  the  vessel 
is  to  be  "  employed  in  the  service  of  any  for- 
eign prince  or  state,  or  of  any  colony^  district, 
or  people.^''  Do  the  Cuban  insurgents  corre- 
spond to  this  latter  description  f 

Mr.  Justice  Brown,  in  The  Carondelet  (37 
Fed.  Rep.  799),  seems  to  hold  to  the  contrary^ 
and  Judge  Locke,  in  The  Three  Friends  (78 
Fed.  Rep.  175),  took  the  same  view.  Justice 
Brown  said :  "  A  vessel  could  hardly  be  said 
to  enter  the  service  'of  a  foreign  prince  or 
state,  or  of  a  colony,  district,  or  people,' 
unless  our  government  had  recognized  Hip- 
polyte's  faction  as  at  least  constituting  a 
belligerent."  But  the  decision  turned  on 
another  point.  The  contrary  view  was  taken 
by  Mr.  Wharton  and  Attorney-General  Hoar, 
who  l)elieved  this  statute  applicable  to  and 
intended  for  just  such  an  insurgent  body  as 
the  Cubans  form  (166  U.  S.  Reps.  1) ;  and 
this  view  was  upheld  by  the  Supreme  Court 
in  The  Three  Friends  case,  on  apiDcal.  Some- 
thing of  the  same  indefiniteness  is  found  in 
the  wording  of  the  British  Foreign  Enlist- 
ment Act.  This  forbids  similar  aid  given  to 
"  any  foreign  prince,  colony,  province,  a  part 
of  any  pro\'ince  or  people,  or  any  person  or 
persons  exercising  or  assuming  to  exercise 


48  OUE   DUTY   TO   SPAIN 

the  power  of  government  in  or  over  any  for- 
eign countrj^,  colony,  province,  or  part  of 
any  province  or  people."  In  the  English 
case.  The  Salvador^  the  lower  court  held,  like 
Judge  Locke,  that  the  statute  did  not  apply 
to  unrecognized  insurgents  in  Cuba.  But 
this  decision  was  overruled  by  the  Judicial 
Committee  of  the  Privy  Council  {The  Sal- 
vador^ L.  R.,  3  P.  C.  218).  In  view  of  the  judi- 
cial interpretation  of  the  American  statute, 
we  may  conclude  that,  though  not  quite  so 
comprehensive  as  the  British  one,  it  covers 
the  case  of  an  unrecognized  insurrection 
perfectly  well.  In  addition  to  this.  Section 
5286  is  comprehensive  enough  to  forbid 
such  an  armed  expedition  as  would  be  ob- 
noxious to  the  general  principles  of  inter- 
national law  already  laid  down.  This  reads 
as  follows :  *'  Every  person  who,  within  the 
territory  of  the  United  States,  begins,  or  sets 
on  foot,  or  prepares  the  means  for,  any  mili- 
tary expedition  or  enterprise  to  be  carried 
on  from  thence  against  the  territory  or  do- 
minions of  any  foreign  prince  or  state,  or  of 
any  colony,  district,  or  people,  with  whom  the 
United  States  are  at  peace,  shall  be  deemed 
guilty,"  etc.  Plainly,  this  statute  is  opera- 
tive without  any  recognition  of  belligerency, 
and  abundantly  satisfies  the  requirements  of 
international  law  which  forbid  one  state  to 
permit  any  hostile  expedition  to  be  prepared 


OUR  DUTY   TO    SPAIN  49 

within  its  jurisdiction  against  another  state, 
its  friend. 

Tliis,  then,  is  tlie  answer  to  the  questions 
which  we  asked  at  the  outset :  that  trade  in 
military  material  is  lawful  to  the  individual ; 
that  the  duty  of  a  state  is  measured,  not  l)y 
its  statutes,  but  by  the  requirements  of  inter- 
national law ;  that  if  those  statutes,  as  inter- 
preted by  its  courts,  are  insufficient  to  lay 
down  its  international  duties  and  prevent 
their  violation,  that  state  is  liable ;  and  that 
in  the  case  of  8pain  and  Cuba  our  statutes 
are  not  faulty,  although  one  could  possibly 
be  made  clearer  and  more  comprehensive. 

This  Cuban  insurrection,  like  the  one  in 
the  seventies,  has  put  the  United  States  into 
a  difficult  position.  Its  trade  has  been  cut 
oif,  its  resources  taxed,  to  preserve  its  neu- 
trality. But,  as  several  convictions  show, 
and  as  the  records  of  the  navy  and  revenue 
service  testify,  it  has  performed  its  inter- 
national duties  with  fidelity,  with  patience, 
and  with  success. 


RESPONSIBILITY  FOR  THE  "MAINE" 


Yale  Law  Journal, 
March,  1898 


RESPONSIBILITY  FOR  THE  "MAINE" 

THERE  are  two  extreme  views  of  the 
responsibility  of  the  Spanish  govern- 
ment in  the  matter  of  the  Maine  in  case  the 
accident-on-board  theory  proves  untenable. 
The  one  holds  that  when  a  ship  of  war  of 
one  country  enters  another's  port  that  other 
guarantees  its  safety  from  external  dangers. 
The  other  maintains  that  under  similar  cir- 
cumstances the  actual  complicity  of  the 
government  must  be  proved  to  attach  liabil- 
ity to  it.  Neither  of  these  views  seems  to  me 
to  be  warranted.  Examine  them  a  moment. 
The  first  view  is  probably  based  upon  a 
mistaken  understanding  of  such  cases  as  that 
of  the  United  States  privateer  General  Arm- 
stronfi  in  the  harbor  of  Fayal  in  1814.  An 
English  boat  expedition  tried  to  cut  her  out. 
Her  crew  defended  themselves  for  a  time,  then 
set  fire  to  the  ship  and  took  refuge  on  shore. 
When  claim  for  her  value  was  made  upon  Por- 
tugal, whose  jurisdiction  had  been  violated 
by  the  attack,  it  was  contested  and  finally  re- 

53 


54  KESPONSIBILITY   FOR   THE    "MAINE" 

f  erred  to  arbitration.  The  award  declared  that 
protection  had  been  due  from  the  Portuguese 
government,  but  that,  since  the  crew  had 
defended  itself  instead  of  appealing  to  the 
authorities,  the  latter  were  freed  from  further 
responsibility.  But  to  argue  that,  because 
protection  is  due  in  a  friendly  port  against 
belligerent  attack,  therefore  protection  is 
guaranteed  against  all  attack,  is  to  confuse 
between  an  act  which  openly  violates  neu- 
trality, sovereignty,  and  international  law, 
and  an  act  which  m^j  be  a  skilfully  devised 
and  secret  evasion  of  the  local  police  regula- 
tions. In  the  one  case  the  attack  is  twofold 
— upon  a  friend's  sovereignty  as  well  as  upon 
an  enemy's  ship  within  that  friend's  juris- 
diction. For  its  own  sake  as  well  as  for  its 
visitor's  sake  resistance  to  open  attack  is 
due.  In  the  other  case,  with  all  the  good 
will  in  the  world,  and  with  efficient  harbor 
policing,  it  may  not  be  possible  to  stop  all 
secret  machinations.  Why  should  a  state 
guarantee  a  degree  of  protection  which 
neither  it  nor  any  other  power  has  the 
ability  to  make  absolutely  effective!  It  is 
the  duty  of  the  United  States  to  prevent 
fililuistering,  but  it  does  not  guarantee  that 
it  will  be  invariably  successful.  It  uses  those 
measures  which  appear  adequate  for  the 
purpose,  and  denies  further  responsil)ility. 
Now  take  the  other  view,  that  the  Spanish 


RESPONSIBILITY  FOE   THE    ''MAINE"        55 

government  has  no  liability  except  for  the 
acts  of  its  authorized  agents.  This  is  as 
mueli  too  lax  a  theory  as  the  other  is  drastic. 
A  government  owes  good  faith,  fair  treat- 
ment, a  desire  to  protect,  as  well  as  the  mere 
order  that  its  own  servants  shall  keep  their 
hands  off.  Its  duties  are  not  merely  nega- 
tive ;  they  are  positive.  Its  duty  lies  partly 
in  controlling  other  agencies  than  its  own 
official  agencies,  and  a  corresponding  respon- 
sibility attaches.  Otherwise  through  mere 
negligence  a  hostile-minded  power  could 
accomplish  its  ends  and  yet  claim  exemption 
from  responsibility.  A  man  is  responsible 
for  the  acts  of  a  savage  dog  which  he  owns, 
even  when  he  does  not  himself  set  the  animal 
on.  If  we  pursue  this  analogy  a  step  further 
it  will  bring  us  to  the  middle  ground  where 
the  law  and  justice  of  this  question  are  con- 
ceived really  to  lie.  Suppose  the  dog  in  ques- 
tion is  not  savage,  has  never  bitten  a  man 
before,  but,  being  under  considerable  mental 
excitement,  suddenly  takes  it  into  his  head 
to  commit  a  breach  of  the  peace.  If  the 
animal's  master  has  had  no  reason  to  suspect 
an  outbreak,  we  do  not  blame  him  for  not 
having  chained  the  dog  up.  To  found  a  suit 
for  damages,  negligence  must  be  shown, 
and  a  jury  will  be  asked  to  pass  upon  the 
question. 

So  is  it  in  judging  Spain's  responsibility 


56         EESPONSIBILITY   FOR   THE   "MAINE" 

for  the  loss  of  the  Maine.  Neither  an  acci- 
dent on  hoard,  nor  an  ontside  attack  resulting 
from  the  orders  of  the  government,  would 
present  any  legal  question.  Between  these 
limits  of  undoubted  responsibility  lies  a 
middle  ground.  We  deny,  on  the  one  hand, 
that  Spain  can  be  held  to  have  guaranteed 
the  safety  of  the  Maine  within  her  waters; 
we  deny,  on  the  other  hand,  that  Spain  owed 
our  ship  nothing  more  than  the  abstention 
of  her  own  officers  from  doing  it  an  injury. 
We  assert  that  the  right  rule  is  that  Spain 
owed  care  and  thought  and  good  judgment 
and  the  use  of  her  ordinary,  or,  if  necessary, 
of  extraordinary,  agencies, — in  a  word,  owed 
due  diligence, — to  secure  the  safety  of  the 
visiting  man-of-war. 

What  is  due  diligence ;  what  sort  of  dili- 
gence was  due  under  the  circumstances  of 
this  case— is  not  this  a  fair  question  for  a 
jury  for  arbitration !  But,  generally  speak- 
ing, due  diligence  would  be  that  which  was 
proportioned  to  a  reasonable  suspicion  of 
risk,  and  to  the  results  to  be  looked  for  from 
a  failure  to  be  diligent. 

An  illustration  will  better  explain  what 
is  meant.  The  relations  between  the  two 
countries  were  somewhat  strained  when  the 
Maine  steamed  into  Havana  harbor.  There 
her  berth  was  assigned  her  by  the  harbor- 
master.    If  he  was  permitted  or  directed  by 


KESPONSIBILITY  FOR   THE    "MAINE"         57 

the  officials  in  charge  to  place  the  ship  over 
a  mine,  thus  niakin*^:  the  explosion  at  the 
hands  of  some  unauthorized  irresponsible 
fanatic  at  least  possible,  it  was  a  failure  of 
due  diligence.  So  if  the  government  became 
aware  of  a  hostile  feeling  and  movement 
among  any  class  in  Havana,  directed 
against  the  Maine  or  the  Americans,  it  was 
bound  to  more  than  ordinary  care  to  protect 
it  and  them.  When  the  Vizcaya  came  to 
our  own  port  during  a  very  excited  condition 
of  the  public  mind  and  temper,  a  greater 
degree  of  diligence  was  due  for  her  protec- 
tion than  in  the  case  of  the  Maine,  and  great 
diligence  was  shown. 

It  may  well  bq  that  the  board  of  inquiry 
will  be  unable  to  assign  a  cause,  or  fix  the 
blame,  for  the  explosion.  In  that  case,  if 
the  principle  we  have  laid  down  is  sound, 
the  Spanish  government  can  only  be  held 
responsible  in  damages  if  it  be  shown  to 
have  failed  to  exhibit  due  diligence  in  pro- 
viding for  the  Maine's  safety. 


CUBA  AND  INTERVENTION 


New  York  Independent, 
March  17,  1898 


CUBA  AND   INTERVENTION 

THE  Maine  explosion  does  not  necessarily 
bring  the  relations  between  Spain  and 
the  United  States  to  a  crisis,  l)ut  it  certainly 
does  not  make  them  more  friendly.  The  old 
difficnlty  remains,  with  the  added  knowledge 
that  the  report  of  the  board  of  inquiry  as  to 
the  loss  of  our  ship  mmj  be  definite  enough 
to  force  the  government's  hand.  There  is, 
too,  a  fast-growing  belief  that  the  adminis- 
tration is  at  or  near  the  intervention  point. 
This  belief  is  not  founded  upon  any  definite 
official  statement ;  it  is,  rather,  the  result  of 
a  study  of  the  preparations  for  war  now 
making  on  both  sides,  and  of  a  conviction 
that  it  is  the  logical  consequence  of  the  sit- 
uation. There  is,  too,  that  subtle,  unreason- 
ing premonition  of  future  events  which,  when 
widely  shared,  insures  their  fulfilment,  not  as 
the  result  of  volition,  but  of  impelling  fate. 
Let  us  briefly  review  the  situation,  to  deter- 
mine if  intervention  is  a  justifiable  course. 
There  has  been  an  insurrection  in  Cuba, 

61 


62  CUBA   AND    INTEKVENTION 

which  for  three  troubled  years  has  disturbed 
our  friendship  with  Spain.  At  considerable 
expense  and  with  good  success,  our  govern- 
ment has  prevented  the  despatching  of  armed 
expeditions  against  the  Spanish  power  in 
Cuba.  The  revenue-cutters  and  also  ships 
of  the  navy  have  been  used  in  this  guard- 
duty.  Many  detentions  and  arrests,  several 
trials,  and  a  few  convictions  testify  to 
the  fidelity  of  the  United  States  in  this 
respect.  Military  supplies  for  the  Cuban 
insurgents  have  been  sent  out  from  our 
ports,  but  that  is  a  lawful  traffic.  The  bur- 
den of  preventing  it  belongs  to  the  Spanish 
authorities  in  Cuba.  Those  authorities, 
inefficient  in  the  discharge  of  their  own 
duties,  have  incessantly  complained  of  our 
negligence.  They  appear  to  have  completely 
failed  to  appreciate  our  diligence  in  pre- 
serving our  neutrality.  I  use  the  word  "  neu- 
trality" for  want  of  a  better  one,  though 
there  is  no  neutrality,  technically  si^eaking, 
when  there  is  no  recognized  war.  Spain 
also  has  our  government  to  thank  that  no 
recognition  of  belligerency  has  been  accorded. 
This  would  have  been  a  lawful  step,  though, 
in  my  opinion,  an  impolitic  one  for  our  own 
interests.  A  recognition  of  Cuban  indepen- 
dence would  not  have  been  lawful  at  any 
time  during  these  three  years,  except  as  a 
deliberate  war  measure. 


CUBA   AND   INTEKVENTION  63 

It  is,  then,  my  conviction  that  this  coun- 
try has  not  failed  in  its  duty  to  Spain, 
though  the  performance  of  that  duty  has 
not  been  easy.  A  state  will  preserve  its 
neutrality  in  war  at  all  costs  and  as  a  matter 
of  course.  But  it  is  a  fair  question  whether, 
in  a  case  of  insurgency  indefinitely  pro- 
longed, the  same  state  is  bound  to  the  same 
duties. 

There  is  another  factor  in  determining 
our  position  toward  Spain  which  is  impor- 
tant. Our  very  considerable  trade  with 
Cuba  has  been  reduced  to  a  fraction  of  its  for- 
mer volume.  Many  millions  of  the  property 
of  our  citizens,  in  sugar  and  tobacco,  have 
been  destroyed  by  both  Spanish  and  Cuban 
soldiers.  For  all  of  this  loss,  in  default  of  a 
recognition  of  Cuban  belligerency,  Spain  is 
legally  responsible.  Yet  who  imagines  that 
such  losses  can  be  collected?  We  see  our 
property  burned,  our  trade  cut  off,  our  com- 
mercial intercourse  hampered  in  a  variety  of 
vexatious  ways,  yet  with  no  end  in  sight. 
In  President  Grant's  time  we  bore  with  a 
similar  state  of  things  for  eight  years.  Are 
we  called  upon  to  suffer  such  losses,  to  make 
such  sacrifices,  for  unappreciative  Spain 
indefinitely  ? 

And,  thirdly,  there  is  the  argument  based 
upon  the  claims  of  humanity.  So  long  as 
the  rules  of  civilized  warfare  were  observed, 


64  CUBA   AND   INTEKVENTION 

SO  loug,  that  is,  as  the  non-combatant  popu- 
lation was  not  interfered  with,  there  was 
little  choice  between  the  two  parties.  Occa- 
sional atrocities  might  be  committed  by 
either  side,  but  neither  side  was  so  conspicu- 
ous a  sinner  as  to  warrant  outside  interfer- 
ence. The  Cubans  at  least  held  their  own. 
But  there  came  a  change  of  policy.  The 
non-combatant  country  population  was 
forced  to  settle  within  range  of  the  guns  of 
the  Spanish,  intrenched  in  the  towns,  and 
there,  destitute  of  food,  or  of  the  means  of 
growing  or  getting  food,  it  starved. 

A  report  of  our  consuls  upon  the  condition 
of  these  people  is  soon  to  be  made  public, 
which  very  possibly  may  strengthen  this 
argument.  As  a  nation  we  have  no  special 
racial  or  I'eligious  sympathy  with  the  native 
Cuban  population.  But  it  would  be  incon- 
sistent with  the  spirit  of  our  age  and  with 
the  character  of  our  civilization  if  we  showed 
no  horror  at  such  a  measure  of  coercion,  no 
desire  in  some  way  to  relieve  such  suffering. 
Can  any  relief  be  effective  which  does  not 
remove  the  cause  I 

These  are  the  three  justifying  reasons, 
then,  for  intervention — for  the  attempt,  by 
national  action,  to  heal  this  open  sore:  the 
burden  of  neutrality;  the  dictates  of  our 
commercial  interests ;  the  call  of  humanity. 
Any  one  of  these  is  strong;  together  they 


CUBA   AND   INTERVENTION  65 

are  very  nearly  corivineing.  And  if  our 
government  should  net  upon  tliera,  I  believe 
the  opinion  of  jurists  would  incline  to  be 
that  such  action  was  warranted.  This,  at 
least,  was  the  conviction  of  the  present  ad- 
ministration early  in  the  year.  Because  of 
its  remonstrances  and  wishes,  there  was 
made  a  change  of  Spanish  policy  in  Cuba. 
Weyler  was  recalled,  trade  was  made  freer, 
aud  a  system  of  autonomous  government 
for  the  island  w\ns  set  up. 

So  far  as  its  effect  upon  the  insurrection 
goes,  this  change  of  policy  has  been  futile. 
Whether  the  condition  of  the  non-combatant 
population  has  been  bettered  is  an  open 
question  which  our  consuls  must  answer. 
But  it  is  clear  that  the  trouble  remains, 
that  the  real  question  is  not  materially 
altered.  And  I  repeat  the  opinion  that 
some  form  of  intervention  by  our  govern- 
ment is  near  at  hand  and  would  be  justifi- 
able. 

Yet  it  does  not  follow  that,  because  legal, 
it  would  be  good  policy.  The  two  are  quite 
distinct,  to  be  argued  on  different  lines. 
Here  are  some  of  the  considerations  bearing 
upon  the  question  of  policy  in  such  inter- 
vention. 

Shall  it  be  immediate,  or  should  another 
delay  be  allowed  to  test  the  scheme  of  au- 
tonomy ? 


6Q  CUBA   AND   INTERVENTION 

Shall  it  threaten  armed  enforcement  of  its 
terms,  or  be  dij)loniatic  ? 

Is  it  likely  to  be  resisted  by  Spain  and 
to  lead  to  war! 

Are  we  prepared  to  carry  on  a  war  credi- 
tably, even  with  so  weak  a  power  as  Spain  I 

Would  the  damage  to  our  trade  through 
a  war  be  balanced  by  the  future  gain  of  get- 
ting rid  of  this  Cuban  incubus! 

Would  not  the  expenses  of  a  war  be  heavy, 
and  offer  a  dangerous  temptation  to  the  issue 
of  paper  money  ? 

If  a  war  were  successful,  would  it  not  be 
likely  to  result  in  the  annexation  of  Cuba  1 

Would  not  the  annexation  of  Cuba  be  a 
serious  strain  upon  our  institutions  and 
methods  of  government  ? 

Is  there  no  way  of  uniting  other  powers 
with  our  own  in  securing  the  pacification  of 
Cuba? 

On  the  other  hand,  is  Spain  likely  to  find 
allies  in  case  of  war  with  the  United  States! 

These  are  questions  which  must  be  con- 
sidered before  embarking  upon  intervention, 
even  if  we  fully  believe  intervention  to  be  a 
right;  for  it  is  our  own  interests,  broadly 
interpreted,  which,  after  all,  must  govern. 
And  in  regard  to  these  questions  every  man 
will  have  and  should  have  his  own  opinion. 
It  is  enough  to  call  attention  to  them.  That 
they  are  being  seriously  studied,  the  present 


CUBA   AND   INTEllVENTION  67 

attitude  of  Congress  testifies.  We  hear  but 
little  Jingoism  now;  the  crisis  is  too  close 
at  hand.     JMay  it  be  met  firmly  and  wisely ! 

But  little  has  been  said  in  this  discussion 
of  the  Ma'uie  incident.  A  finding  of  facts  in 
that  case,  which  declares  the  explosion  to  be 
either  an  accident  from  within,  or  the  direct 
result  of  action  by  the  Spanish  officials,  will 
involve  no  legal  question  of  responsibility. 
But  such  a  finding  is  not  likely. 

If  the  disaster  is  found  to  have  resulted 
from  an  outside  agency  without  specifying 
it,  the  question  of  the  responsibility  of  Spain 
remains.  This  would  depend  upon  the  dili- 
gence shown  in  protecting  the  visiting  vessel. 
Spain  does  not  guarantee  the  safety  of  all 
foreign  men-of-war  in  her  ports.  Neither  is 
her  responsibility  limited  to  the  action  or 
connivance  of  her  own  officers.  But  she  does 
owe  a  care  or  diligence  in  protection  proi3or- 
tioned  to  the  danger  of  attack  and  to  the 
results  likely  to  flow  from  negligence. 

The  question  of  due  dlUgence  and  of  bi- 
demnity  in  such  case  might  fairly  be  left  to 
arljitration. 


THE  WAR  WITH   SPAIN 


AN   ADDRESS 

Before  the  Yale  Club  in  New  York, 
May  13,  1898 


THE   WAR  WITH   SPAIN 

WHEN  two  states,  after  a  long  interval 
of  peace  with  all  civilized  powers, 
actually  find  themselves  at  war,  it  is  a  shock 
and  a  surprise  to  each  of  them.  The  think- 
ing men  in  each  must  inevitably  question 
the  necessity  of  war,  ponder  upon  its  justice, 
speculate  as  to  its  results. 

A  commercial  people  sees  its  trade  inter- 
rupted or  its  credit  attacked  with  discontent ; 
a  sentimental  people  finds  itself  involved  in 
war,  and  shrinks  from  its  passions  and  its 
bloodshed;  a  practical  people  realizes  the 
enormous  economic  waste  of  war,  and  natu- 
rally asks  whether  it  is  worth  while.  There 
are  a  dozen  different  points  of  view,  ranging 
from  peace  at  any  price,  to  war  for  war's 
sake;  and,  above  all,  there  is  the  national 
point  of  view,  which  regards  the  acts  of  its 
own  government  with  a  certain  partiality, 
which,  natural  and  proj^er  though  it  is,  is 
hardly  consistent  with  the  judicial  attitude. 
Now  all  these  many  and  various  interests 

71 


72  THE   WAR   WITH    SPAIN 

and  tendencies  and  prejudices  find  expres- 
sion, and  their  resultant  expressed  in  action 
is  national  policy.  It  is  wearisome,  perhaps, 
l)ut  it  is  necessary,  ever  to  insist  upon  the 
distinction  between  law  or  justice  or  right, 
on  the  one  hand,  and  policy  on  the  other. 
A  state  may  possess  a  right  to  enforce 
which  would  be  suicidal.  Germany  sends  a 
cruiser  to  little  Hayti  to  collect  an  indem- 
nity. But  let  B[a3^ti  press  a  claim,  be  it 
never  so  just,  against  Germany  in  the  same 
way,  and  snap  would  go  the  jaws.  The 
BeicJisJmnd  would  make  but  one  mouthful 
of  the  black  and  tan. 

The  national  policy  of  Spain  is  easy  to 
understand,  because  she  is  the  victim  of 
circumstances,  not  superior  to  them.  She 
is  a  power  of  the  first  rank  only  by  courtesy. 
Burdened  with  debt ;  threatened  with  revolu- 
tion; her  peasantry  ill  educated  and  jn'iest- 
ridden,  though  frugal  and  industrious; 
between  the  gulf  of  Carlism  and  socialism 
and  the  burden  of  her  misgoverned  colonies, 
she  is  between  the  devil  and  the  deep  sea. 
Yet  she  stands  confronting  an  evil  fortune, 
somewhat  bombastic,  but  brave  nevertheless, 
and  extorts  our  admiration .  Her  policy,  then, 
is  one  of  an  almost  passive  resistance  to  an 
inevitable  fate,  negative,  not  positive,  sharing 
neither  the  responsibilities  of  the  European 
concert  nor  its  honors.     She  is  like  one  of 


THE   WAR   WITH    SPAIN  73 

her  own  grandees,  who,  poor  and  proud  and 
childless  and  well-nigh  Iriendless,  never 
loses  courage  or  dignity  or  calm,  and  so 
awaits  his  end.  We  have  a  sentimental 
regard  for  him.  But  if  he  stands  in  the 
way  he  is  pushed  aside. 

And  what  is  our  own  national  policy? 
Have  we  any!  Or,  rather,  are  we  not  ever 
halting  between  two?  The  one  is  freedom 
from  foreign  complications  and  the  settle- 
ment of  momentous  domestic  problems.  The 
other  means  territorial  growth  by  annexa- 
tion or  conquest ;  it  means  the  headship  of 
this  continent;  it  means  a  share  in  the 
scramble  for  colonial  aggrandizement ;  and 
in  the  background  ever  lies  what  the  Euro- 
peans call  Monroeism,  w^iich  is  either  a 
rational  principle  of  self-defense — the  first 
law  of  nations — or  a  national  fetish,  mean- 
ing anything  you  may  happen  to  choose. 

With  these  preliminary  and  rambling- 
remarks,  I  beg  you  to  consider  whether  our 
present  attitude  toward  Spain  can  be  justi- 
fied in  law  and  is  in  harmony  with  sound 
policy.  And  later  I  shall  touch  upon  the 
conduct  of  the  war,  so  far  as  it  has  been  de- 
veloped, from  the  legal  point  of  view. 

Intervention  by  one  state  in  the  affairs  of 
another  is  an  exceptional  thing,  and  needs 
to  be  justified.  There  are  certain  grounds 
for  justification  given  in  the  books,  such  as 


74  THE   WAR   WITH    SPAIN 

self-defense  and  linmanity.  But  I  am  not 
aware  that  any  publicist  pretends  to  be  able 
to  lay  down  exactly  the  rules  which  shall 
govern  intervention.  And  the  reason  is, 
because  cases  of  intervention  are  so  unlike 
one  another,  and  because  national  policy 
enters  so  largely  into  them.  Thus,  Napo- 
leon III  intervened  in  Mexico,  nominally  to 
secure  indemnities  for  French  losses,  really 
to  check  the  political  influence  and  trade 
extension  southward  of  this  country,  and 
occupy  the  minds  of  his  own  people. 

Thus,  too,  Russia  intervened,  in  1877,  in 
l^ehalf  of  Bulgaria.  It  was  based  in  theory 
upon  religious  sympathy  and  upon  humanity. 
It  was  a  move,  in  fact,  upon  the  Straits  and 
Constantinople,  in  pursuance  of  Russia's 
century-long  program. 

Take  another  instance  of  intervention  on 
the  ground  of  humanity,  that  of  the  powers 
in  Greece,  in  1827,  resulting  in  tlie  destruc- 
tion of  the  Turkish  fleet  at  Navarino  and 
Greek  independence.  Here  is  a  somewhat 
close  parallel  to  our  own  action  in  Cuba.  In 
both  cases  there  was  oppression,  misgov- 
ernment,  revolt,  cruelty,  and  resort  to  a  war 
of  extermination.  Ibrahim  Pasha  was  the 
prototype  of  Weyler.  Greece  found  sym- 
pathy and  aid  in  liberal  England,  as  Cuba 
lias  done  here. 

And  each  case  will  be  found,  I  think,  to 


THE   WAK   Wnil    SPAIN  75 

he  in  liarmoiiy  with  the  broad  underlying 
tendency  of  the  century.  For,  in  spite  of 
all  their  hanipering  jealousies,  the  powers 
have  pushed,  are  pushing,  the  Ottoman 
sovereignty  out  of  Europe.  The  carving  of 
an  independent  Greece  out  of  barbarous 
Turkey,  unintended  though  it  may  have 
been  at  the  outset  of  the  intervention,  was 
an  early  step  in  this  direction. 

So,  likewise,  though  we  may  not  all  see  it 
yet,  the  expulsion  of  the  Spaniard  from  un- 
happy Cuba,  whatever  government  succeeds, 
will  be  a  mark  of  progress,  of  civilization, 
because  it  will  open  the  island  to  civilizing 
influences  under  the  auspices  of  its  own 
sons.  Grood  government  it  may  not  have. 
There  is  no  magical  efficacy  in  the  republican 
label.  Better  government  it  will  have  be- 
cause none  could  well  be  worse,  and  because 
it  will  be  its  own.  This,  too,  will  be  in 
line  with  the  century's  tendency  and  our 
own  prejudices,  which  incline  toward  the 
freedom  of  American  soil  from  the  grasp  of 
European  officialism. 

It  may  yet  be  that  we  shall  carry  this 
parallel  one  step  further,  and  find  in  some 
hitherto  unhistoric  spot  a  counterpart  to 
Navarino. 

That  intervention  on  the  ground  of 
humanity  is  justifiable  is  a  matter  of  pre- 
cedent, then,  as  well  as  a  theory.    And  so 


76  THE   WAR   WITH    SPAIN 

far  as  facts  go,  our  action  in  behalf  of  Cuba 
is  as  fair  an  instance  of  it  as  any  of  the 
earlier  examples.  For  it  is  clear,  from  the 
accounts  of  correspondents  and  visitors  of 
various  nationalities,  from  the  reports  of  our 
consuls,  from  the  experiences  of  the  Eed 
Cross  Societj^,  yes,  from  the  confession  of 
Spain  herself  in  the  appropriation  of  money 
to  relieve  starvation,  that  in  a  very  garden 
of  fertility  thousands  upon  thousands  of 
wretches  have  died  from  lack  of  food.  And 
we  cannot  but  infer  that  this  is  a  result  of 
the  concentration  system  devised  by  General 
Weyler. 

But  it  is  not  on  the  score  of  humanity 
alone — to  check  a  war  of  extermination,  to 
prevent  barbarities  practised  upon  non-com- 
batants—that the  President  justifies  inter- 
vention. He  declares  that  the  interests  of  this 
country  are  deeply  involved,  that  it  is  con- 
fronted by  a  condition  of  things  close  to  its 
own  shores  which  has  become  intolerable; 
and  he  specifies  the  damage  to  our  property 
and  trade,  and  the  burden  laid  upon  our 
shoulders  of  preserving  our  neutrality,  as 
examples  of  this.  In  short,  it  is  a  case  of 
self-defense,  defense  of  this  country's  vital 
interests,  though  not,  of  course,  of  the  stability 
of  its  institutions  and  form  of  government. 
It  is  interesting  to  compare  this  plea  with 
the  similar  one  which  President  Cleveland 


THE   WAR  WITH   SPAIN  77 

put  forth  when  he  intervened  between 
Venezuela  and  Great  Britain  in  their  boun- 
dary disjHite.  His  statement  was  as  follows : 
"  It  may  not  be  amiss  to  suggest  that  the 
doctrine  upon  which  we  stand  is  strong  and 
sound,  because  its  enforcement  is  important 
to  our  peace  and  safety  as  a  nation,  and  is 
essential  to  the  integrity  of  our  free  insti- 
tutions and  the  tranquil  maintenance  of  our 
distinctive  form  of  government." 

In  Venezuela  there  was  no  injury  to  our 
trade,  actual  or  threatened;  there  was  no 
policing  of  our  shores  necessary.  The  most 
that  could  be  said  or  could  be  feared  was 
this,  that  Great  Britain  was  showing  a  dis- 
position to  edge  up  on  a  weak  South  Ameri- 
can republic  in  the  matter  of  territory,  acting, 
of  course,  in  behalf  of  its  British  Guiana 
colony;  that  such  a  disposition  remotely 
threatened  to  be  applied  to  ourselves,  after 
it  had  absorbed  the  intervening  ground,  and 
that  therefore  it  was  time  to  check  it. 

It  requires  imagination  to  see  this  danger 
and  appreciate  this  argument,  but  Congress 
and  the  country  generally  had  plenty  of 
it,  and  backed  the  President  in  his  theory 
of  self-defense. 

In  Cuba  we  have  seen  millions  of  Ameri- 
can property  destroyed  by  both  parties,  and 
with  small  chance  of  future  compensation. 
We  have  seen  our  trade  reduced  to  a  frac- 


78  THE   WAR   WITH   SPAIN 

tion  of  its  former  value.  We  have  been  j^nt 
to  serious  trouble  and  exf)ense  in  guarding 
our  neutrality.  We  have  suffered  political 
disturbance  and  business  panic  from  the 
neighborhood  of  this  long-standing  evil. 
Yet  there  was  no  sign  of  its  coming  to  an 
end.  Truly  it  has  been  an  intolerable  con- 
dition. To  my  mind  this  is  a  genuine  case 
of  necessary  defense  of  national  interests; 
the  Venezuela  intervention,  a  fictitious  one. 
It  was  natural  that  Spain  should  fail  to 
see  the  force  of  our  complaints,  of  our  rea- 
soning. She  had  complaints  of  her  own. 
For  though  admitting  diplomatically,  at  a 
very  recent  date,  that  the  conduct  of  this 
country  had  been  correct,  she  was  conscious 
of  a  wide-spread  sentiment  adverse  to  her 
and  her  methods ;  she  knew  that  the  Cuban 
insurrection  had  its  headquarters  in  this 
country;  she  learned  of  the  constant  des- 
patch of  military  supplies  to  her  rebellious 
subjects ;  she  saw  that  in  spite  of  our  watch- 
fulness armed  expeditions  w^ere  fitted  out, 
and  some  of  them  landed  in  Cuba  success- 
fully, while  of  those  seized  and  tried  by  our 
courts  not  all  were  convicted.  And  con- 
stantly recurring  in  Congress  came  attempts 
to  recognize  Cuban  belligerency  or  indepen- 
dence, pressed  in  language  so  abusive  and  in 
ways  so  hostile  that  Spanish  resentment  was 
abundantly  justifiod.     I  shall  say  but  a  few 


THE   WAll   WITH   SPAIN  79 

words  ill  regard  to  Spanish  enticism  of  oui" 
national  attitude.  An  anti-Spanisli  senti- 
ment was  inevitable,  but  it  is  upon  illegal 
acts,  not  hostile  feelings,  that  national  com- 
plaints can  be  founded.  The  sending  of 
war  material  to  the  insurgents  by  individ- 
uals in  this  country  is  a  lawful  trade,  the 
right  and  duty  of  prevention  belonging  to 
the  Spanish  authorities  in  Cuba.  They  have 
assumed  the  air  of  expecting  us  to  do  their 
work  for  them. 

The  equipment  and  despatch  of  filibuster- 
ing expeditions,  so  called,— that  is,  ships 
carrying  an  organized  and  armed  body  of 
men  intending  to  carry  on  war  with  a  state 
with  which  w^e  are  at  peace, — has  been  checked 
by  the  government,  though  not  absolutely 
prevented.  Our  long  seaboard  makes  com- 
plete prevention  difficult.  We  have  exer- 
cised proper  diligence,  using  war-ships  as 
well  as  revenue-cutters,  and  have  made  the 
business  highly  dangerous  and  uncertain. 
More  cannot  be  asked.  As  for  the  debates 
in  Congress,  they  are  supposed  to  be  domestic 
and  privileged  communications,  not  officially 
known  outside.  The  unpleasant  language 
may  be  vulgar  and  indecorous,  without  being 
properly  the  object  of  foreign  complaint. 
Or,  to  put  the  distinction  as  clearly  as  pos- 
sible, if  the  United  States  government  fulfils 
its  neutral  duties,  no  indemnity  can  be  col- 


80  THE   WAll   WITH    SPAIN 

lected  from  it,  no  matter  what  the  expres- 
sions of  its  legislators  have  been.  And  in 
fact,  if  every  abusive  characterization  of  a 
foreign  government  in  our  halls  of  Congress 
were  to  be  noticed  and  resented  by  its 
object,  we  should  be  in  water  at  least  tepid 
most  of  the  time.  Rarely  these  abusive  ex- 
pressions come  home  to  roost,  as  when 
a  former  senator  from  New  England  had 
packed  his  bag  and  was  setting  forth  as 
minister  to  China,  when  he  learned  that  he 
was  i^ersona  von  grata  and  must  lose  his  job, 
all  on  account  of  some  very  natural  and 
commendable  anti-heathen  sentiments  which 
he  had  expressed  and  forgotten  long  since. 

Now,  if  the  position  taken  and  the  argu- 
ments advanced  are  sound,  this  country  had 
a  legitimate  reason  for  insisting  upon  the 
pacification  of  Cuba,  and  w^as  justified  in 
taking  steps  to  secure  it.  That  means 
intervention  of  some  kind.  Yet  it  by  no 
means  followed  that  war  was  necessary,  or 
at  least  immediate.  This  President  McKin- 
ley  realized.  His  attempt  to  get  what  he 
wanted  through  diplomacy  met  the  approval 
of  all  truly  patriotic  men.  Spain  made  con- 
cessions, brought  in  a  new  scheme  of  au- 
tonomy, and  asked  time  to  show  its  efficacy. 
It  can  be  shown,  I  think,  that  the  form  of 
government  offered  was  not  as  liberal  as 
that  which  the  English  colonies  enjoy.    It 


THE   WAR   WITH   SPAIN  81 

was  not  to  reu;ulate  its  own  commercial 
intercourse  Avitli  other  countries,  nor  to  be 
free  from  the  sovereign's  veto.  But  apart 
from  this,  there  were  two  reasons  why  it 
could  not  succeed:  first,  because  the  good 
faitli  of  the  Spanish  government  in  offering 
it  was  distrusted  upon  historical  grounds; 
and,  second,  because  the  insurgents  w^ould 
have  independence  or  nothing.  So  long  as 
the  insurrection  continued,  the  problem  re- 
mained unsolved.  Yet,  on  the  chance  that 
the  liberal  government  in  Spain  might  man- 
age to  yield  all  that  this  country  could  fairly 
demand,  all  but  the  nominal  sovereignty  of 
the  island,  Mr.  McKinley  stuck  manfully 
to  his  negotiations.  The  Maine  explosion 
forced  his  hand.  Whether  we  confess  it  or 
not,  illogical  or  not,  it  was  the  fact  of  that 
catastrojjhe,  working  upon  the  passions  of 
the  great  body  of  the  people,  wiiich  made 
peace  no  longer  jDracticable.  Not  that  self- 
restraint  was  thrown  away.  I  wonder  what 
other  people  would  have  awaited  so  patiently 
an  official  and  technical  report  of  such  tre- 
mendous import.  Suppose,  after  the  German 
Kaiser  had  stirred  England  to  its  center  by 
putting  his  finger  into  the  Transvaal  mess, 
an  English  ship  of  war  had  been  sunk  in 
Kiel  or  Bremen  harbor  by  an  explosion 
apparently  from  an  outside  source.  Is  it 
probable  that  the  delicate  balance  of  respon- 


82  THE   WAll   WITH   SPAIN 

sibilitj^  for  the  loss,  with  a  financial  indem- 
nity taekecl  on,  would  have  been  calmly 
argued  or  arbitrated,  and  national  j)assion 
choked  down?  I  trow  not.  Yet,  legally 
speaking,  such  was  our  proper  course.  For 
neither  could  the  Spanish  government  be 
held  to  have  guaranteed  the  Ma'me^s  safety, 
on  the  one  hand,  nor  to  be  free  from  all 
responsibility,  except  for  the  authorized  acts 
of  her  officers,  on  the  other.  So  that  the 
nice  adjustment  of  liability  for  an  event 
which  might  be  the  result  of  negligence  in 
policing  the  harbor  of  Havana,  or  a  delib- 
erate act  of  the  authorities,  or  an  accident, 
was  really  possible  only  through  the  judg- 
ment of  disinterested  parties.  To  pursue 
the  righteous  object,  the  pacification  of  Cuba, 
as  an  unconnected  matter,  and  by  further 
diplomacy;  to  arbitrate  the  liability  for 
the  loss  of  the  Mahie—thsit  would  have 
been  the  ideal,  the  logical  course.  But 
there  are  moments  in  the  life  of  nations,  as 
well  as  of  individuals,  when  logic  does  not 
point  the  road.  The  youth  of  to-day,  like 
his  savage  ancestor  centuries  ago,  chooses 
his  mate  when  the  supreme  passion  flames 
up  in  his  breast,  and  considerations  of  for- 
tune and  position  are  forgotten.  The  man 
vindicates  his  rights  when  his  blood  is  up, 
and  pays  a  five-hundred-dollar  fee  to  recover 
a  five-dollar  claim.     The  nation,  stirred  be- 


THE   WAR   WITH    SPAIN  83 

yond  endurance,  throwing  logic  and  econo- 
my to  the  winds,  interprets  its  dnty  to  suit 
its  passion,  and  ruslies  into  war. 

It  may  not  be  in  accordance  with  the  law 
of  love,  but  since  the  dawn  of  history  it  has 
been  the  characteristic  of  our  fallen  human 
nature.  And  statesmen  have  to  take  account 
of  it,  as  w^ell  as  of  budgets  and  balances.  vSo 
the  time  came  when  our  President,  though 
himself  still  inclined  to  the  peaceable  way, 
and  though  the  armistice  offei-ed  to  the  in- 
surgents invited  further  delay  and  negotia- 
tion, no  longer  struggled  against  the  rising 
tide.  He  had  sought  a  lawful  object  in  a 
proper  way,  until  circumstances  were  too 
strong.  We  should  honor  him  for  what  he 
did,  rather  than  blame  him  for  what  he  could 
not  do. 

And  when  we  study  the  conditions  in 
Spain,  we  can  understand  why  the  American 
demands  involved  an  impossibility.  For 
ignorance  of  the  real  character  and  resources 
of  this  country,  backed  by  invincible  pride, 
would  have  unseated  both  the  ministry  and 
the  dynasty  which  offended  them.  So  that 
it  is  probable  that  endless  negotiation  would 
never  have  brought  Sagasta  and  the  queen 
regent  to  an  admission  of  Cuban  indepen- 
dence. 

I  do  not  declare,  in  this  review  of  the 
events  of  the  past  year,  that  the  right  of  the 


84  THE   WAE   WITH    SPAIN 

United  States  to  undertake  armed  interven- 
tion in  Cuba  is  i^roved,  nor  that  its  policy 
in  doing  so  is  flawless.  But  I  do  believe 
that  this  intervention  is  as  justifiable  as  any 
has  ever  been  in  the  past,  and  is  undertaken 
from  as  correct  motives.  And  though  the 
policy  of  war  with  Spain  is  open  to  criticism, 
I  am  inclined  to  think  that  it  must  have 
come  to  that  in  the  end. 

It  was  curious,  when  the  supreme  moment 
came,  to  see  how  regard  for  facts  and  pre- 
cedents still  governed.  Though  determining 
upon  the  independence  of  Cuba,  Congress 
nevertheless  did  not  recognize  the  indepen- 
dence of  the  insurgent  body  which  stood  for 
free  Cuba.  Into  its  motives  we  need  not 
look  too  deeply,  but  it  is  something  that  it 
has  not  violated  its  own  precedents  nor  the 
law  of  common  sense,  even  as  a  war  measure. 
Yet  it  must  be  said  that  such  a  step  might 
have  added  weight  to  our  disclaimer  of  all 
wish  to  possess  Cuba,  by  pointing  out  the 
party  which  should  possess  it.  Far  better 
will  it  be,  if  we  have  the  power,  to  call  upon  all 
the  citizens  of  the  liberated  island,  Spanish- 
and  Cuban-born  alike,  to  join  in  framing  the 
new  order. 

But  this  is  looking  too  far  ahead,  and 
crossing  a  bridge  before  we  come  to  it. 
Meanwhile  we  have  war  on  our  hands. 
There  has  never  been  a  moment's  doubt  as 


THE   WAR   WITH    SPAIN  85 

to  its  eventual  outcome.  As  has  been  well 
said,  it  is  money  at  three  per  cent,  against 
money  at  twelve  per  cent.;  for  a  nation's 
credit  is  the  weapon  of  first  importance. 
With  a  determined  and  united  i)eople,  and 
potential  strength  almost  incalculable,  the 
result  must  be  certain ;  yet  the  early  opera- 
tions of  an  untested  fleet  might  well  be 
watched  with  some  uneasiness.  This  the 
events  at  Manila  have  effectually  dispelled. 

But  it  is  not  the  actual  combat  that  it  falls 
to  me  to  discuss.  The  naval  expert  is  study- 
ing this,  with  an  eager  curiosity  w^hich  is 
changing  week  by  week  into  confidence  and 
enthusiasm,  as  his  theories  are  confirmed  by 
results  of  an  astonishing  character.  Our 
attention  is  rather  to  be  directed  to  the  effect 
of  this  war  upon  commerce.  There  w^ere  two 
reasons  for  doubting  whether  the  old  rules  of 
capture,  in  all  their  harshness  and  complete- 
ness, would  be  applied.  One  was  the  growth 
of  the  neutral  influence  and  interest;  the 
second  related  to  the  change  in  modern  com- 
mercial usages. 

When  the  first  armed  neutrality — a  league 
principally  made  up  of  the  Baltic  powers — 
announced  as  part  of  its  program  the  rule 
that  free  ships  make  free  goods,  it  marked 
an  epoch.  For  the  neutrals  thus  showed 
their  intention  to  combine  to  advance  their 
interests,  even  by  force  and  in  violation  of 


86  THE   WAR   WITH    SPAIN 

the  accepted  law.  It  was  the  first  conspicu- 
ous proof  of  the  neutral's  consciousness  of 
his  own  importance.  And  throughout  the 
century  now  ending,  the  neutral  influence 
has  grown.  When  it  cannot  prevent  war 
altogether,  it  can  limit  its  disastrous  effects 
upon  trade.  It  must  not  be  thought  that 
any  neutral,  and  least  of  all  Great  Britain, 
would  disregard  the  primary  rules  govern- 
ing blockade  and  contraband  and  the  right 
of  search.  If  for  no  other  reason,  he  could 
not  afford  to  lay  down  so  hampering  a  pre- 
cedent. But  we  could  fairly  expect  to  find, 
in  the  interpretation  of  treaties,  in  the 
powers'  attitude  toward  privateering,  in 
their  dislike  to  submit  to  search,  in  their 
desire  that  the  postal  service  shall  be  undis- 
turbed, in  their  resistance  to  frivolous  cap- 
ture, a  strong  and  united  neutral  intention 
to  make  their  trade  as  free  from  belligerent 
interruption  as  possible.  And  this  may 
possibly  go  the  length  of  offering  mediation 
on  the  basis  of  Cuban  independence,  after 
a  Spanish  reverse  or  two  has  given  the 
opening. 

Quite  as  influential  in  limiting  the  bellig- 
erents' right  of  capture  is  modern  trade 
usage. 

Once  upon  a  time  the  merchant  loaded 
his  grain  or  his  goods  upon  his  own  or  an- 
other's ship,  and  sent  them  to  find  a  market ; 


THE   WAR   WITH    SPAIN  87 

or,  if  shipped  upon  order,  yet  the  title  did 
not  pass,  the  payment  was  not  made,  until 
delivery.  Traces  of  this,  of  course,  survive ; 
but  the  prevalent  usage  to-day  completes 
the  sale  of  produce  before  shipment.  Ameri- 
can grain  and  cotton  for  English  use  are 
l^aid  for  by  accepted  bill  of  exchange,  and 
their  new  ownership  attaches  to  them  while 
still  in  this  country.  And  so  the  result,  in 
very  many  cases,  must  be  that  Spain  will 
find  no  enemy's  property  afloat  to  capture. 
I  was  curious  to  know  how  the  Spanish  gov- 
ernment and  prize  courts  would  meet  this 
difficulty.  For  where  the  produce  of  Ameri- 
can soil,  presumptively  American  property, 
screened  itself  from  capture  under  a  bill  of 
sale  which  might  or  might  not  be  genuine,  it 
would  have  been  but  natural  to  stretch  a 
point  and  at  least  subject  the  question  to 
judicial  investigation.  If  this  should  result 
in  acquitting  the  goods,  it  would  at  least 
have  delayed  them,  perhaps  for  months,  and 
have  cost  the  ship  heavily.  This  in  turn 
was  likely  to  be  resented  by  the  neutral. 

But  all  such  speculations  have  been  set  at 
rest  by  the  early  announcements  of  both  com- 
batants that  they  will  be  governed  by  the 
rules  of  the  declaration  of  Paris  of  1856, 
though  Spain  reserved  the  right  to  issue 
letters  of  marque.  It  will  be  recalled  that 
the  declaration  provided  for  the  abolition 


88  THE   WAR   WITH    SPAIN 

of  privateering,  for  effective  blockades,  and 
for  the  security  of  neutral  goods  under  an 
enemy's  flag  and  enemy's  goods  under  the 
neutral  flag.  It  bound  only  its  signatories, 
of  whom  Spain  was  not  one.  By  adopting 
its  rules,  Spain  thus  gave  up  her  undoubted 
right  to  seize  the  goods  and  the  produce  of 
the  United  States  loaded  on  ]3oard  English, 
German,  Dutch,  and  French  ships. 

I  believe  it  is  not  extravagant  to  say  that 
this  was  a  deliberate  surrender  by  Spain  of 
her  very  best  means  of  distressing  her  enemy. 
In  spite  of  all  the  newspaper  talk  of  coast 
attack,  the  likelihood  of  it  has  been  small. 
It  is  too  far  from  a  Spanish  base,  it  risked 
too  much  from  a  fleet  attack  in  flank,  it 
promised  no  adequate  return,  and  unless 
the  town  shot  at  was  fortified  and  defended 
the  attack  would  be  unlawful.  No  landing 
in  force  was  practicable,  nor  had  the  United 
States  colonies  to  be  attacked.  There  re- 
mained, therefore,  only  fleet  combat  or  the 
war  upon  commerce.  This  last  was  legal  and 
practicable,  both  as  against  American  ships 
and  American  goods  in  neutral  ships.  No- 
thing in  the  treaties  between  Spain  and  the 
United  States  forbade  it ;  nothing  in  the  law 
of  nations  even  discouraged  it.  Shij)s  of 
war  are  built  especially  for  it,  as  commerce- 
destroyers  ;  it  is  the  sole  ol)ject  of  privateer- 
ing, a  right  which  we  ourselves,  in  company 


THE   WAR  WITH    SPAIN  89 

with  Spain,  have  for  forty  years  resolutely 
held  fast  to.  And  the  attack  upon  Ameri- 
can commerce,  or  rather  upon  the  marketing 
of  American  products,  had  the  possibility  of 
much  mischief.  Cutting  off  the  coast  trade 
was  perhaps  possible,  Ijut  would  not  be  so 
safe  and  easy  as  a  patrol  of  the  Channel  en- 
trance, and  the  seizure  of  American-owned 
goods  borne  mostly  by  the  neutral.  For 
wiiatever  interfered  with  the  regularity  of  a 
voyage  increased  its  cost  in  insurance  and 
freights,  and  diminished  correspondingly  the 
value  of  its  lading.  This  meant  dearer  wheat 
abroad,  cheaper  wheat  in  the  West.  It  might 
even  mean  a  considerable  dislocation  of  our 
railway  and  terminal  through  system,  sub- 
stituting Canadian  ports  for  New  York  and 
Baltimore,  Philadelphia  and  Boston,  in  order 
to  escape  the  suspicion  of  carrying  enemy's 
goods.  And  the  result  might  have  been 
Western  discontent,  and  opposition  to  the 
war.  How,  then,  are  we  to  account  for  the 
surrender  by  Spain  of  the  chief  weapon  in 
her  armory  ?  The  expkmation  must  be  found 
in  the  two  facts  which  have  Ijeen  alluded  to, 
the  change  in  trade  usage  and  the  neutral 
influence.  May  we  not  imagine  the  neutral 
powers  saying  to  Spain  :  "Defend  your  honor 
and  your  island,  if  it  must  be,  but  see  to  it 
that  our  commerce  is  damaged  as  little  as 
possible  "  ? 


90  THE   WAR   WITH    SPAIN 

lu  our  own  action  there  is  less  to  occasion 
surprise.  Every  one  of  the  rules  of  the  decla- 
ration of  Paris  except  privateering  has  been 
advocated  by  the  executive  for  many  years, 
and  inserted  in  many  treaties.  Privateering 
to-day  is  an  anachronism.  It  would  not  be 
profitable  or  practicable.  Ships  of  war  can 
do  the  same  work  better.  But  apart  from 
such  considerations,  the  United  States  had 
a  definite  object  to  work  for,  the  expulsion 
of  the  Spanish  from  Cuba.  Preying  upon 
Spanish  commerce,  except  as  it  interfered 
with  a  plan  of  campaign ;  distressing  our 
enemy,  and  incidentally  the  neutral,  by  seiz- 
ing Spanish  goods  under  the  neutral  flag— 
these  were  so  unessential  to  our  main  object 
as  to  be  unimportant.  We  had  weapons 
better  forged,  while  Spain  had  none. 

This,  then,  is  the  principal  feature  of  the 
war  thus  far,  that  neither  combatant  means 
to  seize  enemy's  goods  in  neutral  bottoms. 
More  than  this,  it  is  a  marked  step  in  the 
history  of  naval  capture;  it  is  the  virtual 
accession  to  the  declaration  of  Paris  of 
two  out  of  the  three  states  refusing  in  1856 
to  sign  that  instrument.  It  should  be  fol- 
lowed by  their  formal  accession  in  happier 
times. 

Two  or  three  minor  questions  have  been 
raised,  or  at  least  suggested,  by  tlie  war  thus 
far,  which  may  not  be  without  interest.     One 


THE   WAR   WITH    SPAIN  91 

relates   to  a  declaration   of  war.     Was   it 

necessary,  to  legalize  captures'? 

The  international  rule  is  that  war  legally 
dates  from  the  actual  outbreak  of  hostilities. 
Now  the  capture  of  enemy's  property  is  a 
mark  of  the  outbreak  of  hostilities,  and  the 
inference  is  that  the  seizure  of  the  other 
party's  property  creates  a  status  which  legal- 
izes an  act  otherwise  doubtful.  Thus  the 
argument  is  that  war  exists  because  a  cap- 
ture has  been  made,  and  a  capture  is  legal 
because  w^ar  exists,  wdiich  sounds  rather 
sophistical.  Yet  formal  declarations  of  war 
are  neither  necessary  nor  usual  to-day. 
Strained  relations  lead  to  a  specific  demand 
of  some  sort,  with  an  ultimatum  or  threat 
attached.  Failure  to  comply  with  tlie  terms 
of  this  ultimatum  means  war.  So,  too,  a 
legislative  act  to  authorize  war  is  construed 
as  a  declaration.  But  though  no  formal 
announcement  of  war  is  due  to  an  enemy,  it 
is  customary  to  the  neutral  to  let  him  know 
what  rules  of  capture  likely  to  affect  his 
interests  are  to  be  enforced.  And  this,  as 
we  have  seen,  has  been  made.  Congress 
voted  a  formal  declaration,  too,  apparently 
for  domestic  reasons.  And  by  proclamation 
the  President  has  given  the  customary  grace 
to  Spanish  ships  in  our  ports  or  bound  hither 
before  war  began.  But  this  is  not  in  terms 
made  retroactive.     I  should  imagine,  then, 


92  THE   WAR  -WITH    SPAIN 

that  the  only  question  will  arise  in  the  case 
of  the  captures  of  the  first  few  days;  that 
the  legality  of  such  captures  is  a  proper 
question  for  a  prize  court ;  and  that  the 
chance  is  that  it  will  be  sustained.  Unless 
special  reasons  exist,  coast  fishermen  should 
be  exempt  from  capture,  in  conformity  to 
modern  usage.  The  same  rule,  it  may  be 
added,  holds  good  as  to  scientific  expedi- 
tions. 

No  serious  questions  affecting  the  blockade 
of  the  westerly  Cuban  ports  have  as  yet 
arisen.  By  courtesy  one  or  two  neutral  men- 
of-war  have  been  passed  through  it.  One 
warning,  at  the  harbor's  mouth,  has  been 
given  to  merchantmen  sailing  before  the 
notice  and  the  fact  became  notorious.  But 
very  soon  every  vessel  trying  to  enter  will 
be  good  prize. 

We  have  pledged  ourselves  to  make  this 
blockade  effective.  By  this  is  meant  that  it 
shall  be  highly  dangerous,  not  that  it  shall 
be  actually  prohibitory.  If  the  blockading 
squadron  is  driven  away  temporarily  by 
stress  of  weather,  no  new  notice  is  due ;  but 
if  by  the  Spanish  fleet,  the  blockade  must 
begin  again  de  novo. 

In  our  treaties  with  various  countries, 
now  neutrals,  contraband  goods  are  specified. 
But  although  it  is  only  fair  to  the  neutral 
that  he  should  know  accurately  and  in  ad- 


THE   WAE   WITH    SPAIN  93 

vance  what  kinds  of  property  he  may  law- 
fully carry,  it  is  equally  true  that  these  lists 
of  contraband,  many  of  them  antiquated, 
can  be  enlarged  to  keep  pace  with  the  adap- 
tation of  new  materials  or  combinations  to 
warlike  uses.  It  will  be  proper,  therefore, 
for  our  own  government  to  draw  up  a  full 
list  of  articles  which  it  will  consider  contra- 
band, and  submit  it  to  the  neutral  powders. 
Coal  has  a  doubtful  character.  Under  cer- 
tain  circumstances  it  has  as  direct  a  relation 
to  w^ar  as  gunpowder  itself;  under  others 
it  merely  serves  manufactures  and  com- 
merce. Thus  there  is  no  uniformity  of 
treatment.  In  the  present  war  the  British 
government  considers  it  contraband.  This 
announcement  is  supplemented  by  a  rule, 
identical,  I  believe,  with  that  followed  by  it 
in  the  Civil  War,  which  allows  its  sale  at 
British  coaling-ports  to  ships  of  war  of  both 
combatants  alike,  in  limited  quantities  and 
infrequently.  Gunpowder  could  not  be 
similarly  sold,  without  a  breach  of  neutrality. 
As  contraband,  traffic  in  coal  is  lawful,  of 
course,  but  subject  to  the  liability  of  capture. 
The  port  regulations  concerning  it  are  fair, 
and  will  help  that  nation's  vessel  most  which 
happens  to  be  farthest  from  its  home  base 
of  supplies. 

The  United   States  is  committed  by  its 
past  usage  to  the  English  doctrine  ranking 


94  THE   WAll   WITH    SPAIN 

coal  "occasionally  contraband."  But  the 
continental  view  is  not  in  line  with  this,  nor, 
indeed,  nniform  itself..  France  holds  directly 
the  contrary;  so  does  Russia;  while  Ger- 
many goes  even  further  than  England.  As 
for  Italy,  her  treaty  with  the  United  States 
in  1871  does  not  mention  coal  as  contraband, 
yet  declares  that  the  articles  enumerated, 
"and  no  others,  shall  be  considered  as 
comprehended  under  this  denomination." 
Clearly  there  is  room  in  this  direction  for 
differences,  since  both  France  and  Italy  are 
partial  to  Spain,  and  will  be  likely  to  defend 
their  theory  that  coal  is  not  contraband. 

It  may  have  been  noticed  that  Spain  is  said 
to  have  terminated  her  treaties  with  the 
United  States  of  America.  War  in  itself 
would  have  done  this.  But  it  cannot  be 
intended  that  a  provision  to  take  effect  only 
in  case  of  w^ar  should  be  abrogated  by  war, 
for  that  would  be  a  denial  of  its  existence 
ah  initio  and  altogether. 

There  is  one  such  proviso,  in  Article  XIII, 
treaty  of  1795,  which  grants  a  year,  in  case 
of  war,  for  the  subjects  of  either  country, 
within  the  other,  to  withdraw  with  their 
proj)erty.  So  that  if  Spain  should  expel  all 
Americans  within  this  time-limit,  it  would 
be  in  violation  of  contract;  and  if  injury 
is  done  them,  satisfaction  must  be  made  by 
the  government. 


THE   WAIl   WITH    SPAIN  95 

As  to  the  right  of  search,  it  may  not  be 
clear  to  every  one  that  an}'  ship  may  be 
stopped  and  searched  on  the  high  seas.  For 
she  may  be  carrying  contraband  to  a  hostile 
destination,  or  she  may  be  bound  for  a 
blockaded  port.  And,  as  Lord  Stowell  said, 
you  may  search  her,  no  matter  what  her 
character,  destination,  and  cargo ;  for  until 
you  have  searched  her,  you  cannot  certainly 
tell  what  her  character,  destination,  and 
cargo  are.  Moreover,  capture  may  be  justi- 
fied at  the  very  outset  of  the  voyage,  if  cir- 
cumstances make  the  ship's  destination  clear. 
Mail-steamers,  however,  are  to  be  regarded 
with  great  leniency,  and  if  the  usage  of  our 
Civil  War  is  followed,  if  disturbed  at  all, 
their  mails  should  be  forwarded  wath  seals 
unbroken. 

There  are  certain  other  consequences  of 
war,  which  may  not  be  familiar,  nor  widely 
applicable,  yet  are  likely  to  raise  a  question. 
I  mean  the  personal  results  which  flow  from 
the  hostility  of  the  two  countries.  By  our 
law  every  subject  of  the  one  state  is  at  war 
with  every  subject  of  the  other.  In  theory 
all  Spanish  property  within  the  United 
States  may  be  confiscated,  but  the  courts 
say  that  there  must  be  a  special  act  of  legis- 
lation to  do  it,  and  such  a  barbarity  would 
be  abhorrent  to  the  modern  mind.  What 
does  happen  is  this:   All  partnerships  are 


96  THE  WAR   WITH   SPAIN 

dissolved.  All  contracts,  including  insur- 
ance policies,  are  suspended.  Debts  are 
uncollectable  during  war,  but  revive  at  the 
return  of  peace.  Each  state  considers  as 
its  enemy's  subjects  not  only  those  born 
and  naturalized  such,  but  also  foreigners 
resident  within  its  jurisdiction  for  any  pur- 
pose. Thus  Germans  and  their  property 
injured  by  a  bombardment  of  Manila  would 
have  no  claim  to  indemnity.  So,  also,  the 
property  of  an  English  wine-merchant  resi- 
dent in  Xeres  would  be  subject  to  capture. 
In  fact,  the  same  is  true  of  an  American's 
share  in  the  same  house.  No  trading  with 
Spain  on  the  part  of  any  one  in  the  United 
States  is  permissible,  and  "  trading  "  is  a  wide 
term.  In  case  of  a  partnership  house  on 
neutral  soil  the  law  is  curious  and  incon- 
sistent. Suppose  such  a  house  in  France 
with  three  partners,  an  American,  a  French- 
man, a  Spaniard.  We  should  not  enforce 
the  prohibition  to  trade  with  an  enemy 
against  the  American's  share,  but  we  would 
capture  and  condemn  the  Spaniard's  share. 
And  so  on  in  great  detail. 

One  more  inquiry,  which  is  likely  to  be 
a  practical  one.  Suppose  Manila  and  Porto 
Rico  to  be  captured  and  occupied  by  our 
forces.  The  usual  rules  for  the  government 
of  occupied  territory  would  presumably  be 
put  in  force.     These  are  practically  the  local 


THE  WAR  WITH   SPAIN  97 

laws  and  usages,  under  the  local  authorities 
and  judges,  but  sanctioned  and  backed  by 
martial  law.  Occupation  does  not  vest 
sovereignty  in  the  occupant.  Sovereignty 
is  in  suspense,  as  it  were,  until  decided  by 
the  terms  of  peace.  Such  is  the  general 
scheme.  But  at  Manila  what  duties  would 
we  levy,  and  for  whose  l^enefit  would  they 
be  spent?  We  have  a  precedent  to  guide 
us  on  this  point,  which  may  be  found  in  two 
decisions  of  the  Supreme  Court,  the  cases 
arising  during  the  Mexican  War  (Fleming 
vs.  Page,  9  Howard,  603 ;  Cross  vs.  Harrison, 
16  Howard,  164).  The  law  is  well  stated 
by  Dana  in  his  edition  of  Wheaton  (note 
162,  p.  421),  from  which  I  quote :  "  During 
the  Mexican  War,  certain  ports  of  the  coun- 
try, which  were  in  the  firm  possession  of  the 
United  States  forces,  were  decided  not  to  be 
ports  of  the  United  States  in  such  sense  that 
the  ordinary  revenue  laws  established  for  the 
Union  would  take  effect  there,  but  were 
places  held  by  the  nation  for  a  special  pur- 
pose of  war, — whether  to  be  permanently 
held  or  not  being  matter  of  future  determina- 
tion,— and  subject,  while  so  held,  to  such 
special  revenue  regulations  as  the  proper 
department  of  the  government  should  estab- 
lish. In  the  absence  of  any  provisions  by 
Congress  for  such  cases,  the  President,  as 
commander-in-chief,  had  authority  to  pre- 


yy  THE   WAE   WITH   SPAIN 

scribe  them.  As  regards  goods  imported 
into  the  United  States  from  a  place  so  held, 
they  are  to  be  considered  as  importations 
from  a  foreign  country."  Mr.  Dana  also 
cites  the  ease  of  Castine,  held  by  a  British 
force  during  the  War  of  1S12.  Our  Su- 
preme Court  denied  that  it  could  be  con- 
sidered a  part  of  the  United  States  dur- 
ing such  occupation,  within  the  meaning 
of  the  revenue  laws,  or  that  duties  upon 
goods  then  imported  could  be  afterward 
collected. 

If  we  occupy  Manila,  then,  the  Dingley 
tariff  is  not  ij^so  facto  applicable,  though 
legislation  could  make  it  so.  The  proba- 
bility is,  however,  following  modern  usage, 
that  the  Spanish  tariff  w^ould  be  enforced, 
and  the  proceeds,  with  the  other  taxes,  be 
used  for  the  administration  of  the  islands. 
It  would  be  legal  to  cover  a  balance  into  our 
treasury — legal,  but  highly  impolitic,  for  it  is 
just  that  same  sort  of  administration  which 
is  costing  Spain  her  colonies.  Dana  wrote 
thirty  years  ago.  The  theory,  perhaps,  has 
not  changed  since  then,  but  the  usage  has 
become  everyw^here  recognized  that  occu- 
pied territory  does  not  belong  to  the  tem- 
porary conqueror.  His  will  is  its  law,  it  is 
true,  but  its  law  expressed  in  the  language 
of  the  law  already  existing ;  he  collects  taxes, 
but  through  the  usual  local  agencies,  if  they 


THE   ^VAK   WITH    SPAIN  99 

are  available,  and  for  the  local  benefit ;  he 
is  trustee,  in  short,  not  bandit. 

These  are  some  of  the  legal  questions 
raised  by  the  war,  set  forth,  I  feai',  in  but 
a  dull  and  frag-nientary  way.  Others  are 
coming.  The  State  Department  seems  fully 
equal  to  them.  There  is  a  wider,  a  more 
serious  problem,  however,  which  the  people, 
and  not  a  department,  must  solve,  deliber- 
ately, wisely,  counting  the  cost.  If  the  result 
of  the  war  is  to  leave  the  United  States  in 
possession  of  various  Spanish  colonies,  what 
shall  be  done  with  them  ?  The  joressure  to 
retain  them  will  be  strong,  as  coaling-sta- 
tions, as  indemnity,  as  an  act  of  humanity 
giving  refuge  to  the  victims  of  Spanish 
misrule,  as  an  act  of  policy  launching  this 
country  upon  a  new  career.  With  Hawaii 
annexed,  with  Porto  Rico  and  the  Philip- 
pines conquered,  with  coaling-stations  ga- 
lore, with  a  Nicaragua  Canal,  a  navy  suited 
to  our  ambitions  and  resources,  an  army 
large  enough  for  foreign  service,  and  a  civil 
service  adapted  to  colonial  use,  we  should 
be  ready  to  pose  as  a  world  power,  though 
rather  late  in  the  field.  It  is  a  brilliant 
program  ;  is  it  a  wise  one  ?  Will  these  new 
activities  help  in  the  solution  of  the  old 
problems— a  stable  currency,  a  compromise 
tariff,  a  reformed  public  service?  Is  it  the 
true  mission  of  a  people  which  is  working 


100  THE  WAR  ^^^TH   SPAIN 

out  the  problem  of  self-government  to  run 
oft'  into  colonial  aggrandizement?  To  me 
the  prospect  is  not  reassuring.  We  seem  to 
have  come  to  the  j)arting  of  the  ways.  There 
need  be  no  superstitious  reverence  for  the 
policy  of  our  early  days,  as  outlined  in  the 
noble  words  of  Washington's  farewell  ad- 
dress. What  we  must  judge  of  is  the  best 
and  wisest  and  safest  policy  for  to-day. 
Whether  this  is  to  be  forward  and  aggres- 
sive, or  devoted  to  internal  development  and 
conservative,  every  citizen  must  decide  for 
himself.  If  he  wishes  an  election  to  turn  on 
the  claim  to  a  slice  of  China,  or  the  support 
of  a  candidate  for  the  presidency  in  Mexico, 
our  demagogues  wall  not  deny  him.  Nothing 
could  be  more  convenient  for  the  dodging  of 
troublesome  issues;  nothing  more  alluring 
than  to  play  on  the  pseudo-patriotic  chord. 
There  is  danger  in  our  strength ;  we  should 
beware  even  of  our  nobler  aspirations.  The 
plainest  of  common  sense  is  a  better  guide 
than  the  fervor  of  sentimentalism  or  the 
ambition  of  the  Jingoes,  Of  one  thing,  how- 
ever, let  us  make  sure ;  that  our  future  shall 
be  determined  hy  us  and  not  for  us.  Our 
isolation  allows  us  independent  action.  And 
if  a  German  emperor  or  a  French  president 
attempts  to  limit,  to  threaten,  or  to  dictate, 
he  shall  know  that  we  are  no  part  of  his 
system,  that  our  sense  of  right,  not  his  will, 
is  our  law. 


THE  FUTURE  OP  THE  PHILIPPINES 


The  New  York  Times, 
May  30,  1898 


THE  FUTURE  OF  THE  PHILIPPINES 

ONE  of  the  marked  characteristics  of  the 
American  people  is  its  cheerful  opti- 
mism. Too  keen  to  hide  from  itself  its 
blunders,  it  is  nevertheless  too  hopeful  to 
dwell  long  upon  their  harmfulness,  and,  it 
must  l3e  confessed,  too  impatient  to  be  guided 
always  by  the  lessons  of  experience.  This 
is  a  sign  of  youth  and  of  strength.  It  be- 
tokens a  nation  accustomed  to  command 
success. 

There  is  an  example  of  this  optimism  at 
the  present  time.  We  command  the  harbor 
of  Manila,  but  have  not  occupied  the  Philip- 
pines. This  is  a  serious  and  a  separate  task. 
We  have  sailed  into  the  port  of  San  Juan  in 
Porto  Eico,  have  knocked  down  a  portion 
of  the  fortifications,  and  have  sailed  out 
again.  What  the  sequence  of  these  two 
actions  will  bo  we  cannot  know.  But  we 
guess  it,  and  begin  to  discuss  the  future  of 
both  islands  as  if  we  held  them  in  tlie  hollow 
of  our  hands.  Truly  Columbia  is  the  milk- 
maid of  the  fable. 

103 


_j4       the   FUTUKE   of   the   PHILIPPINES 

In  accordance  with  this  national  char- 
acteristic, and  disregarding  the  fate  of  the 
milkmaid  and  her  fairing,  let  ns  consider 
what  the  policy  of  the  United  States  shonld 
be  if  the  close  of  the  war  with  Spain  finds 
the  Philippines  in  its  possession. 

There  are  three— yes,  four— interests  to 
be  kept  in  sight.  These  api:)ertain  to  the 
former  sovereign,  to  the  inhabitants  them- 
selves, to  the  other  trading  powers  whose 
commercial  and  j^olitical  balance  may  be 
affected,  and  to  the  United  States. 

1.  The  rights  of  Spain. 

Military  occupation  does  not  wipe  out  the 
sovereignty  of  an  invaded  territory.  That 
sovereignty  may  be  incapable  of  assertion, 
yet  it  survives  until  either  revived  or  removed 
by  a  treaty  of  peace.  Spain  will  thus  retain 
rights,  even  in  case  of  complete  conquest, 
which  must  be  eventually  weighed  and 
adjusted.  What  line  this  will  take  must 
depend  upon  the  influence  of  other  powers, 
upon  our  own  sense  of  expediency,  and  upon 
the  fortune  of  war  in  other  directions. 

2.  The  rights  of  the  Philippine  islanders. 
It  would  be  unwarranted  to  say  that  no 

cession  of  these  islands  would  be  legitimate 
unless  ratified  by  the  wishes  of  their  inhabi- 
tants. In  a  highly  civilized  community  this 
is  the  modern  tendency,  though  even  then 
yielding  to  political  exigencies,  as  in  xVlsace- 


THE   FUTURE   OF   THE   PHILIPPINES        105 

Lorraine.  But  it  is  a  practical  question 
whether  the  Philippines  could  be  anything 
but  a  burden  to  this  country  if  their  transfer 
proved  to  be  against  the  will  of  their  millions 
of  inhabitants,  many  already  in  revolt,  and 
absolutely  foreign  to  our  blood,  our  usages, 
our  laws,  our  ideals. 

3.  The  interests  of  other  powers. 

Here  the  vital  question  is  how  far  the 
United  States,  by  possession  of  the  Philip- 
pines, would  place  itself  within  the  European 
vortex,  to  be  buffeted  and  cajoled,  thwarted 
and  urged  on,  forced  out  from  its  safe  and 
comfortable  isolation  into  the  treacherous 
sea  of  enmities  and  alliances.  When  Japan 
made  peace  with  China  at  Simonoseki  she 
received  a  slice  of  the  mainland.  Russia, 
France,  and  Germany  combined  to  prevent 
this  cession,  and  Japan  had  to  content  her- 
self with  an  indemnity  and  Formosa.  When 
we  begin  to  trench  upon  the  trading  pre- 
serves of  the  great  military  powers,  shall 
we  be  similarly  treated  1  Would  we  submit 
to  such  treatment? 

4.  The  rights  and  true  interests  of  the 
United  States. 

The  right  of  conquest  is  something.  The 
consciousness  of  ])ringing  a  better  govern- 
ment is  something.  The  prospect  of  a 
favoral)le  vantage-ground  for  the  extension 
of  our  Oriental  trade  is  a  temptation.     But 


106       THE   FUTURE   OF   THE   PHILIPPINES 

tlie  problem  is  terribly  complex.  Here  are 
some  of  tlie  considerations  to  be  kept  in 
mind  while  we  are  trying  to  solve  it : . 

We  are  waging  a  war  which  we  believe  to 
be  just.  It  is  in  defense  of  humanity  and  of 
our  sorely  tried  national  interests.  Its  ob- 
ject is  the  pacification  of  Cuba.  The  entire 
civilized  world  save  Great  Britain  believes 
that  it  is  a  war  of  selfish  aggression.  We 
declare  that  our  motives  are  pure,  and  enact 
in  the  most  formal  way  a  self-denying  ordi- 
nance to  assure  the  world  that  we  shall  not 
retain  Cuba.  If  under  these  circumstances 
we  do  seize  and  propose  to  retain,  not  Cuba 
at  once,  perhaps,  but  Porto  Eico  and  the 
Philippines,  one  or  both,  with  what  face  can 
we  maintain  our  altruistic  professions?  In 
appearance  and  in  fact  we  should  be  hypo- 
crites. 

But  can  we  part  with  our  prospective  con- 
quests! Too  weak  to  stand  alone  as  they 
are,  we  could  not  add  them  to  the  numbei' 
of  bastard  republics.  Nor  could  we  give 
them  or  sell  them  to  this  power  and  to  that, 
lest  all  the  slighted  powers  should  resent 
it,  and  demand  an  equivalent.  The  most- 
favored-nation  clause  and  the  balance-of- 
power  principle  seem  to  run  singularly  close 
together.  Yet  to  hand  them  back  to  Spain, 
no  matter  on  what  condition,  would  be  a 
deliberate  surrender  of  their  peoples  to  the 


THE   FUTiniE    OF   THE   PHILIPPINES        107 

i»:riii(ling  tyranny  from  which,  at  great  cost, 
we  have  rescued  their  Cuban  brothers.  Are 
we  not,  then,  by  process  of  exclusion,  forced 
to  accept  as  our  own  what  the  fortune  of 
war  may  give  us,  even  if  it  be  a  white  ele- 
phant! Possibly.  There  must  be  a  balan- 
cing of  considerations.  Unless  we  do  retain 
our  conquests,  however,  the  line  of  least 
resistance  would  seem  to  lead  to  Spanish 
ownership  again. 

What  are  the  objections  to  the  retention 
by  the  United  States  of  the  Philippines  as  a 
future  part  of  its  territory  ?  Are  they  prac- 
tical and  sound,  or  are  they  chiefly  ethical, 
like  the  one  already  given  1 

One  relates  to  the  form  of  government 
which  could  be  applied  to  them.  Our  con- 
quests hitherto,  as  well  as  our  purchases. 
New  Mexico  and  California,  as  w^ell  as  Loui- 
siana and  Alaska,  have  brought  us  territory 
barely  inhabited  at  all.  But  here  are  thickly 
populated  islands,  whose  people  are  so  mixed 
in  race,  so  uncertain  in  quality  of  civilization, 
so  destitute  to  all  appearance  in  self-govern- 
ing capacity,  as  to  make  it  doubtful  whether 
they  could  ever  be  brought  into  our  Union 
as  an  integral  part.  For  the  present,  at 
least,  they  must  be  governed  with  a  strong 
hand.  This  might  mean  indefinite  martial 
law;  it  might  mean  government  by  a  com- 
mission  or   a   governor    appointed   by   the 


108        THE   FUTUEE   OF   THE   PHILIPPINES 

President,  relying  upon  a  military  force  for 
support.  Either  method  might  succeed 
temporarily,  though  either  method  is  liable 
to  abuse.  But  neither  offers  a  permanent 
solution.  The  satrap  system  is  too  repugnant 
to  our  political  ideas.  Nor  can  we  confide  in 
the  selection  of  officials  to  man  such  a  system 
until  our  civil  service  is  better  developed. 

Another  objection  is  to  be  found  in  the 
military  burden  involved.  Some  effort  is 
necessary  to  picture  to  ourselves  the  change 
of  military  and  naval  establishment  which 
would  be  necessary  if  the  United  States 
became  a  colonial  power.  This  sort  of  am- 
bition grows  by  what  it  feeds  upon.  Porto 
Rico,  Hawaii,  the  Philippines,  would  only 
whet,  not  satisfy,  the  taste.  We  should 
require  a  foothold  in  China  to  compete  in 
trade  facilities  w^itli  other  powers.  We 
should  insist  upon  the  exclusive  control  of 
a  Central  American  interoceanic  canal. 
Indeed,  many  urge  this  at  present,  looking 
at  the  question  from  the  theoretical  and 
strategical,  not  the  practical,  point  of  view. 
We  should  need  Cuba  as  the  key  to  the  east- 
ern approach  to  this  canal.  We  should  need 
coaling-stations  and  dry-docks — in  other 
words,  fortified  and  garrisoned  ports — at 
convenient  points  in  the  Pacific  and  South 
Atlantic.  All  this  means  more  territory  to 
defend,  more  soldiers  to  defend  with,  more 


THE  PUTUEE   OP  THE   PHILIPPINES       109 

ships  to  keep  up  the  connection— not  only- 
more,  but  very  many  more.  How  gladly 
Britain  would  limit  her  responsibilities  if 
she  could !  But  it  would  be  construed  as  a 
sign  of  weakness,  and  she  fears  the  conse- 
quences. She  cannot  let  go.  We  are  more 
fortunate  because  we  have  not  taken  hold. 
We  are  a  rich  and  prosperous  peoj^le.  This 
is  largely  owing  to  two  causes  (aside  from 
race  and  form  of  government),  cheap  land 
and  freedom  from  militarism.  Just  as  the 
cheap  government  land  is  becoming  a  thing 
of  the  past,  and  men  are  wondering  whether 
they  can  grow  wheat  at  a  profit  and  fertilize 
also,  we  are  asked  to  assume  the  military 
burden. 

One  other  objection  to  a  national  policy 
which  must  involve  large  expenditures, 
closer  political  relations  with  other  powers, 
and  trade  rivalries  reaching  to  the  ends  of 
the  earth,  relates  to  its  effect  upon  domestic 
problems.  We  have  several  questions  upon 
which  national  parties  divide — a  stable  cur- 
rency, a  compromise  tariff,  and  reform  in 
various  departments  of  national.  State,  and 
municipal  politics.  These  must  be  settled 
soon  and  wisely,  as  many  believe,  if  this 
republic  is  successfully  to  endure.  But 
how  can  they  be  properly  settled  or  advan- 
tageously considered  if  burning  questions 
of  foreign  policy  are  complicated  with  them  ? 


110       THE   FUTURE   OP   THE   PHILIPPINES 

Take,  for  instance,  the  one  hundred  and 
fift}'-  or  two  hundred  millions  of  additional 
income  which  this  policy  of  colonial  expan- 
sion would  require,  or  the  much  larger  sum 
needed  in  case  of  actual  war.  (For  war 
would  be  more  likely  than  at  present,  just 
as  a  man  is  more  likely  to  injure  another  if 
he  has  a  weapon  than  if  he  has  none.)  To 
raise  such  revenue  involves  a  dozen  consid- 
erations like  these:  a  national  debt,  issuing 
paper  money,  abolition  of  pension  payments, 
lowering  tariffs  to  make  them  more  pro- 
ductive, an  income  tax,  heavier  internal 
taxation. 

Is  it  not  likely  that  currency  reform  and 
sound  tariff  legislation  would  be  very  much 
interfered  with,  if  not  altogether  prevented, 
by  the  financial  necessities  of  a  colonial  pol- 
icy ?  While,  on  the  other  hand,  the  financial 
advantages  of  that  policy,  through  extension 
of  trade  and  finding  new  markets,  can  add  but 
indirectly  and  insignificant!}^  to  the  national 
income ;  for  the  colonial  requirements  nuist 
first  be  met,  otherwise  our  administration 
would  be  no  better  than  Spain's.  The  fact  is 
that  the  advocates  of  a  colonial  policy  are 
carried  away  by  the  success  of  Grreat  Britain 
in  this  direction,  as  Germany  has  been,  for- 
getting that  English  development  has  been 
the  result  of  geographical  isolation  and  cen- 
turies of  effort. 


THE   FUTURE   OF   THE  PHILIPPINES       111 

Without  wasting  rhetoric,  these  are  mat- 
ters to  ))e  seriously  weighed  ])efore  we  decide 
to  keej)  the  Philii)pines— if  we  shall  find 
ourselves  their  masters.  Aud,  for  one,  I  am 
inclined  to  think  that  if,  before  the  war  is 
fought  to  a  fiiud  issue,  peace  should  be  re- 
stored, whether  through  mediation  or  Span- 
ish initiative,  on  the  basis  of  Cuban  indepen- 
dence and  a  restoration  of  Manila,  it  would 
be  a  happy  escape  from  a  most  perplexing 
situation. 


THE   LAW   AND   THE   POLICY 
FOR   HAWAII 


Yale  Eeview, 
February,   1894 


THE   LAW  AND   THE   POLICY 
FOR  HAWAII 

FOR  more  than  two  i^enerations  the  his- 
tory of  the  minor  states  on  this  continent 
has  been  kaleidoscopic.  Revolution  has  fol- 
lowed revolution,  monarchy  has  followed 
republic,  and  republic  monarchy;  while  all 
too  frequently  from  a  congenial  soil  has 
sprung  that  poisonous  growth,  the  dictator. 
It  is  not  safe  to  draw  too  broad  conclusions 
hastily,  and  certain  exceptions  occur  to  every 
one.  But,  on  the  whole,  the  chaotic  politics 
of  Central  and  South  America  lead  one  to 
question  the  genius  of  the  Latin  races  for 
self-government;  they  go  far  to  prove  that 
no  magical  potency  lies  in  a  republican  form 
of  government.  It  is  human  character,  not 
political  form,  that  tells  in  the  stability  of 
institutions.  An  incidental  result  of  these 
frequent  political  changes  has  been  to  oblige 
the  United  States  accurately  to  define  its 
diplomatic  position  in  view  of  tlieni,  and  to 
lay  down  rules  for  the  recognition  of  new 

115 


116      THE  LAW  AND  THE  POLICY 

governments.  Its  usage  in  this  regard  may 
be  considered  settled.  It  is  clearly  stated 
in  a  despatch  of  Mr.  Livingston's,  Secretary 
of  State,  to  Sir  Charles  Vaughan,  April  30, 
1833 :  "  It  has  been  the  x^i'inciple  and  the 
invariable  practice  of  the  United  States  to 
recognize  that  as  the  legiil  government  of 
another  nation  which  by  its  establishment 
in  the  actual  exercise  of  political  power 
might  be  supposed  to  have  received  the 
express  or  implied  assent  of  [the]  people." 
To  show  the  application  of  this  principle 
to  revolutionary  changes  similar  to  the  recent 
overturn  in  Hawaii,  several  examples  are 
selected  from  recent  state  papers.  In  his 
third  annual  message  (1883),  referring  to  the 
contest  just  terminated  between  Bolivia, 
Chile,  and  Peru,  President  Arthur  concludes : 
"  When  the  will  of  the  Peru^dan  people  shall 
be  manifested,  I  shall  not  hesitate  to  recog- 
nize the  government  approved  by  them." 
And,  again,  Mr.  Frelinghuysen,  in  a  despatch 
to  Mr.  Logan,  March  17, 1884,  declares :  "  The 
Department  of  State  will  not  recognize  a  rev- 
olutionary government  claiming  to  represent 
the  people  in  a  South  American  state  until 
it  is  established  by  a  free  expression  of  the 
will  of  that  people."  Similarly,  President 
Hayes  states  (first  annual  message,  1877) : 
"  It  has  been  the  custom  of  the  United  States, 
wdien  such  [revolutionary]  changes  of  gov- 


FOR  HAWAII  117 

ernment  have  heretofore  occurred  in  Mexico, 
to  recognize  and  enter  into  official  relations 
with  the  (/('  facto  government  as  soon  as  it 
shall  appear  to  have  the  approval  of  the  Mex- 
ican people,  and  should  manifest  a  disposition 
to  adhere  to  the  obligations  of  treaties  and 
international  friendship."  A  single  instance 
more,  Mr.  Seward  to  Mr.  Culver,  November 
19, 1862,  in  the  matter  of  Venezuela :  "A  rev- 
olutionary government  is  not  to  be  recog- 
nized until  it  is  established  by  the  great  body 
of  the  population  of  the  state  it  claims  to 
govern." 

This  rule  represents  not  only  the  usage  of 
this  country  in  the  matter  of  recognition ;  it 
is  also  in  accord  with  the  principles  of  inter- 
national law.  All  states  are  equal.  Each 
state  may  determine  its  own  form  of  govern- 
ment, may  change  it  at  will.  The  govern- 
ment de  facto  is  the  government  de  jure. 
That  is  a  government  de  facto  which  is  ca- 
pable of  insisting  on  the  rights  and  fulfilling 
the  duties  of  the  state.  Such  capacity  will 
spring  from  the  undoubted  expression  of  the 
will  of  the  people.  Recognition,  before  proof 
of  such  popular  backing  is  furnished,  is  pre- 
mature. It  assunK^s  a  fact  which  is  not  yet 
manifest. 

With  these  simple,  well-established  rules 
in  mind,  we  are  in  a  position  to  judge  of 
the  propriety  of  the  early  diplomatic  moves 


118       THE  LAW  AND  THE  POLICY 

ill  the  Hawaiian  question  now  confront- 
ing us.  The  position  of  a  queen  in  the 
Hawaiian  Islands  is  as  legal  as  that  of  an 
emperor  in  Russia.  The  personal  character 
of  that  queen  does  not  affect  the  legality  of 
her  goyerninent.  A  change  of  the  constitu- 
tion under  which  she  governs  is  an  internal 
question  solely.  Early  in  the  present  year 
there  occurred  a  revolutionary  outbreak  in 
Honolulu.  A  new  government  was  set  up, 
calling  itself  provisional.  What  was  the 
attitude  of  the  United  States  toward  it? 
Was  its  traditional  usage  observed  ?  On  the 
contrary,  amid  the  conflicting  statements 
of  fact,  we  can  at  least  make  sure  of  this: 
before  the  people  of  Oahu  had  a  chance  to 
pronounce  upon  their  desire  for  the  change, 
before  the  other  islands  could  even  hear  of 
it,  before  the  new"  regime  could  demonstrate 
its  capacity  for  fulfilling  the  obligations  of 
the  state,  l)efore  it  had  gained  possession  of 
all  the  government  buildings  and  proved  its 
power,  its  recognition  w^as  granted  by  the 
United  States.  This  action  was  premature ; 
it  was  contrary  to  our  usage  in  similar  cases ; 
it  was  in  the  highest  degree  improper.  That  it 
was  soon  followed  by  similar  recognition 
by  the  representatives  of  the  other  states 
which  maintain  diplomatic  relations  with 
Hawaii  does  not  excuse  it.  For,  in  the  first 
place,  our  recognition  unquestionably  gave 


FOR   HAWAII  119 

the  new  government  a  standing  which  it 
might  not  otherwise  have  had,  and,  again, 
recognition  by  one  state  is  apt  to  be  sjDeedily 
followed  by  the  recognition  of  other  states, 
lest  they  suffer  in  influence  with  the  new 
government.  Emphatically  it  is  the  first 
step  wiiich  counts.  It  will  be  noticed  that 
no  mention  is  made  of  the  charge  that  the 
avowed  sympathies  of  the  United  States 
minister,  and  the  landing  of  marines,  nomi- 
nally to  preserve  order,  assisted  in  effecting 
this  revolution.  For  the  latter  act  there  was 
a  precedent  at  the  time  of  the  accession  of 
King  Kalakaua.  Moreover,  the  troops  had 
orders  to  take  no  part  in  the  contest,  but 
merely  to  protect  property.  Into  the  ques- 
tions of  veracity  raised  by  Mr.  Blount's 
report  and  Mr.  Stevens's  denials,  as  well  as 
into  the  question  of  motive  in  landing  ma- 
rines, for  the  purposes  of  the  present  argu- 
ment it  is  not  necessary  to  go.  The  hasty 
recognition  of  the  provisional  government 
by  the  United  States  was  wrong.  If  it  was 
the  sequel  of  a  conspiracy  hatched  by  Mr. 
Stevens,  it  could  be  no  more  than  wrong- 
more  scandalous,  it  is  true,  but  in  nature 
similar.  This  closes  the  first  act  in  the  little 
drama. 

The  second  act  is  now  on  the  stage.  Here 
we  find  a  sovereign  and  independent  state, 
calling  itself  a  provisional  government,  that 


120  THE   LAW   AND    THE   POLICY 

is,  organized  provisionally  to  secure  certain 
objects.  What  these  objects  were  is  best 
stated  in  the  proclamation  of  the  revolu- 
tionary committee,  issued  January  16,  1893 : 
"  The  Hawaiian  monarchical  system  of  gov- 
ernment is  hereby  abrogated.  Provisional 
government  for  the  control  and  management 
of  public  affairs  and  the  protection  of  public 
peace  is  hereby  established,  to  exist  until 
terms  of  union  with,  the  United  States  of 
America  have  been  negotiated  and  agreed 
upon."  What  is  the  status  of  this  govern- 
ment in  the  eye  of  international  law  I  Does 
its  provisional  character  make  it  any  the  less 
a  sovereign  state  1  Granting  that  its  origin 
was  owing  to  a  wrongful  act  on  the  part  of 
the  United  States,  is  its  subsequent  legality 
impaired  ?  Both  of  these  questions  must  be 
answered  in  the  negative.  The  intervention 
of  France  in  our  Revolutionary  War  was 
technically  illegal,  was  an  act  of  war,  but 
the  recognition  of  the  United  States  was  not 
thereby  invalidated.  Our  recognition  of 
Texan  independence  was  wrong,  in  being 
likewise  premature,  but  no  one  questioned 
the  legality  of  the  Texan  status.  Not  only 
our  recognition  of  the  new  government  in 
Hawaii,  not  only  its  recognition  by  other 
states,  but  also  every  subsequent  act,  proves 
its  sovereignty.  We  have  accredited  a 
minister  to  it,  we  have  received  a  minister 


FOR    HAWAII  121 

from  it.  Nor  does  its  avowed  provisional 
character  alter  our  duties  or  its  rights.  If  a 
government  is  organized  to  secure  certain 
objects,  who  shall  decide  wdien  and  whether 
those  objects  are  achieved  or  are  impossible, 
or  what  other  olgects  shall  succeed  them  I 
Is  the  dictum  that  the  objects  for  which  this 
provisional  government  was  formed  have 
proved  nugatory,  and  that,  therefore,  ijjso 
facto  it  has  lapsed,  and  the  former  govern- 
ment reverts,  one  which  it  is  competent  for 
any  other  than  itself  to  pronounce  ?  Surely 
not,  otherwise  its  sovereignty  w^ould  be  a 
very  qualified  article.  What  this  new^  gov- 
ernment shall  do  with  its  own,  what  it  shall 
develop  into,  whether  it  shall  withdraw  in 
favor  of  the  deposed  queen  or  form  itself 
into  a  f)ermanent  republic,  is  a  matter  purely 
for  internal  decision. 

The  recognition  of  a  provisional  govern- 
ment is  no  new"  thing.  It  w^as  made  in  the 
case  of  Costa  Rica  in  1868.  The  "  National 
Defense  Committee  "  w^as  recognized  in  1870 
as  the  government  of  France.  The  Calderon 
government  was  recognized  in  1881  as  the 
"  existing  provisional  government "  of  Peru. 

When  we  ask,  then,  what  should  be  our 
attitude  toward  the  provisional  government 
of  Hawaii,  if  w^e  observe  our  own  usage  and 
the  rules  of  international  law,  there  can  be 
but  one  answ^er.     Its  rights  are  the  same, 


122       THE  LAW  AND  THE  POLICY 

our  relations  to  it  are  the  same,  as  in  the 
case  of  its  predecessor.  To  restore  the 
queen  by  intervention  would  be  a  fresh 
w^'ong.  Any  forcible  interference  in  the 
affairs  of  Hawaii,  even  to  insist  on  a  plebis- 
cite whose  result  should  determine  in  whose 
hands  the  government  shall  reside,  w^ould 
be  illegal.  For  Hawaii  is  a  sovereign  state. 
One  wrong  cannot  be  cured  by  another. 
Our  duty  is  simple.  It  consists  in  keeping 
our  hands  off. 

In  international  relations,  questions  of 
policy  must  be  argued  on  different  lines 
from  questions  of  law\  While  the  law  is  or 
should  be  simple,  capable  of  precise  state- 
ment, a  nation's  policy  is  the  result  of  a 
complexity  of  motives,  of  facts  which  of 
necessity  may  not  have  been  brought  clearly 
into  view.  To  attempt  to  define  the  proper 
policy  for  the  United  States  to  pursue 
toward  Hawaii,  then,  is  to  tread  on  more 
uncertain  ground.  Yet  even  here  we  have 
a  former  usage  to  guide  us ;  to  change  this 
should  require  justification. 

In  a  despatch  of  Mr.  Webster's,  December 
19,  1842,  our  policy  toward  Hawaii  was 
stated  as  follow^s :  "  The  United  States 
have  regarded  the  existing  authorities  in 
the  Sandwich  Islands  as  a  government 
suited  to  the  condition  of  the  people  and 
resting  on  their  own  choice ;  and  the  Presi- 


FOR    HAWAII  123 

dent  is  of  opinion  that  the  interests  of  all 
commercial  nations  reqnire  that  that  govern- 
ment shonld  not  be  interfered  with  by  for- 
eign powers.  Of  the  vessels  which  visit  the 
islands,  it  is  known  that  the  great  majority 
belong  to  the  United  States.  The  United 
States,  therefore,  are  more  interested  in  the 
fate  of  the  islands  and  their  government 
than  any  other  nation  can  be,  and  this  con- 
sideration induces  the  President  to  be  quite 
willing  to  declare,  as  the  sense  of  the  govern- 
ment of  the  United  States,  that  the  govern- 
ment of  the  Sandwicli  Islands  ought  to  be 
respected;  that  no  power  ought  either  to 
take  possession  of  the  islands  as  a  conquest 
or  for  the  purpose  of  colonization,  and  that 
no  i^ower  ought  to  seek  for  any  undue  control 
over  the  existing  government,  or  any  exclu- 
sive privileges  or  preferences  with  it  in  mat- 
ters of  commerce." 

In  his  message  a  few  days  later  President 
Tyler  deemed  it  "not  unfit  to  make  the 
declaration  that  [this]  government  seeks  no 
peculiar  advantages,  no  exclusive  control 
over  the  Hawaiian  government,  but  is  con- 
tent with  its  independent  existence,  and 
anxiously  wishes  for  its  security  and  pros- 
perity." 

Developing  this  idea,  Mr.  Legare  wrote 
Mr.  Everett,  in  1843,  to  the  efeect  that  the 
Hawaiian  Islands  bore  such  peculiar  rela- 


124      THE  LAW  AND  THE  POLICY 

tions  to  ourselves  that  we  might  even  feel 
justified,  consistently  with  our  principles,  in 
interfering  by  force  to  prevent  their  falling 
(by  conquest)  into  the  hands  of  one  of  the 
great  powers  of  Europe.  And  in  1850,  sus- 
pecting French  designs  upon  the  Sandwich 
Islands,  Mr.  Clayton  wrote  that  their  situa- 
tion and  "  the  bonds,  commercial  and  of  other 
descriptions,  between  them  and  the  United 
States  are  such  that  we  could  never  with 
indifference  allow  them  to  pass  under  the 
dominion  or  exclusive  control  of  any  other 
power.  We  do  not  ourselves  court  sover- 
eignty over  them." 

The  following  year  Mr.  Webster  reiterated 
the  same  policy  in  an  admirable  despatch, 
disclaiming  the  desire  "  to  exert  any  sinister 
influence  over  the  councils  of  Hawaii,"  and 
expecting  "  to  see  other  powerful  nations 
act  in  the  same  spirit."  "  This  government 
still  desires  to  see  the  nationality  of  the 
Hawaiian  government  maintained,  its  inde- 
pendent administration  of  public  affairs  re- 
spected, and  its  prosperity  and  reputation 
increased."  This  was  after  an  intrigue  of 
the  French  commissioner  in  Hawaiian  affairs 
had  come  to  light.  With  a  single  excep- 
tion, all  our  state  papers  alluding  to  this 
topic,  the  messages  of  our  presidents,  the 
despatches  of  our  secretaries  of  state,  bear 
witness  to  the  same  policy  of  independence 


FOR   HAWAII  125 

for  Hawaii,  an  iudepeiideuce  free  from  the 
interference  of  foreign  states,  uncontrolled 
by  our  own. 

This  one  exception  is  a  despatch  of  Mr. 
Marcy  in  1853.  In  September  he  had  written : 
"While  w^e  do  not  intend  to  attempt  the 
exercise  of  any  exclusive  control  over  them, 
we  are  resolved  that  no  other  power  or  state 
shall  exact  any  political  or  commercial  privi- 
leges from  them  which  we  are  not  permitted 
to  enjoy,  far  less  to  establish  any  protec- 
torate over  them." 

But  by  December  he  seems  to  have  changed 
his  mind,  and  writes :  "  I  do  not  think  the 
present  Haw^aiian  government  can  long  re- 
main in  the  hands  of  the  present  rulers,  or 
under  the  control  of  the  native  inhabitants 
of  these  islands,  and  both  England  and 
France  are  apprised  of  our  determination  not 
to  allow  them  to  be  owned  by  or  to  fall 
under  the  protection  of  these  powders  or  of 
any  otlier  European  nation.  It  seems  to  be 
inevitable  that  they  must  come  under  the 
control  of  this  government,  and  it  would  be 
but  reasonable  and  fair  that  these  powers 
should  acquiesce  in  such  a  disposition  of 
them,  provided  the  transference  was  effected 
by  fair  means."  This  was  but  a  passing  idea, 
of  which  nothing  came,  and  in  1868  Mr, 
Seward  wrote  that  "  the  public  mind  in  the 
United   States  was  not  in  a  condition  to 


126  THE  LAW  AND   THE   POLICY 

entertain  the  question  of  the  annexation  of 
the  Sandwich  Islands."  Mr.  Blaine's  pub- 
lished correspondence  conveys  repeatedly 
the  same  impressions. 

This  practically  uniform  policy  toward 
Hawaii — jealousy  of  its  possible  control  by 
some  other  power,  while  not  seeking  to  alter 
its  independent  status  ourselves — appears 
in  the  reciprocity  treaty  of  1875.  After  ar- 
ranging for  the  free  interchange  of  certain 
specified  products  by  the  two  countries,  Arti- 
cle IV  stipulates  as  follows:  "It  is  agreed 
on  the  part  of  his  Hawaiian  Majesty,  that, 
so  long  as  this  treaty  shall  remain  in  force, 
he  will  not  lease  or  otherwise  dispose  of  or 
create  any  lien  upon  any  port,  harbor,  or 
other  territory  in  his  dominions,  or  grant 
any  special  privilege  or  rights  of  use  therein, 
to  any  other  power,  state,  or  government, 
nor  make  any  treatj^  by  which  any  other 
nation  shall  obtain  the  same  privileges,  rela- 
tive to  the  admission  of  any  articles  free  of 
duty,  hereby  secured  to  the  United  States." 

Bearing  in  mind  the  policy  thus  described 
and  witnessed  to,  we  are  ready  to  ask  if 
there  is  anything  in  the  present  situation  in 
Hawaii  to  necessitate  a  reversal  of  this 
policy. 

The  population  of  the  Hawaiian  Islands 
has  a  very  large  foreign  admixture,  out- 
numbering the  natives  in  the  proportion  of 


FOR   HAWAII  127 

three  to  two.  This  is  chiefly  Portuguese,  but 
the  wealth  and  trade  are  largely  in  the 
hands  of  the  Americans.  Through  the 
efforts  of  American  missionaries  the  island 
population  w^as  Christianized.  Now  sixty 
per  cent,  of  its  inhabitants  attend  church 
regularly,  while  ninety-five  per  cent,  can  read 
and  write.  Their  government  has  been  a 
constitutional  monarchy.  The  foreign  ele- 
ment showed  its  power  in  1887  by  forcing 
upon  the  crown  a  new  constitution  more  fa- 
vorable to  itself.  The  queen,  recently  de- 
posed, attempted  the  abolition  of  this  constitu- 
tion, but  drew  back  before  the  storm  which  her 
action  created.  Distrusting  her,  and  adverse 
to  certain  government  measures  relating  to 
the  opium  traffic  and  the  Louisiana  lottery, 
the  American  element  overthrew  the  queen, 
and  set  up  a  government  of  its  own,  with 
the  avowed  object  of  annexation  to  the 
United  States.  The  annexation  idea  was 
acceptable  to  President  Harrison,  and  a 
treaty  to  secure  that  object  was  signed. 
Before  it  was  ratified  by  the  Senate,  how- 
ever, came  the  change  of  administration 
and  recall  of  the  treaty. 

Now,  it  is  noteworthy  that  neither  j^arty 
in  Hawaii  seems  hostile  to  the  interests  of 
this  country.  The  recent  queen  referred 
her  cause  to  this  government;  the  revolu- 
tionary party  desired   the   closest  possible 


128       THE  LAW  AND  THE  POLICY 

connection  with  it.  Moreover,  both  parties 
seem  to  promise  reasonably  well  to  observe 
the  obligations  of  state  toward  the  United 
States.  The  monarchy  can  show  the  educa- 
tion and  peaceful  temper  of  its  native  popu- 
lation, together  with  its  fifty  years'  record 
of  creditable  national  life  and  treaty  obser- 
vance. The  provisional  government  repre- 
sents, it  is  said,  probably  with  truth,  the 
wealth,  intelligence,  and  enterprise  of  the 
foreign  element.  Whichever  faction  holds 
the  mastery  of  affairs,  there  seems  no  menace 
to  this  country's  interests.  If  those  interests 
are  threatened,  we  have  the  treaty  of  1875 
to  fall  back  upon.  If  that  treaty  should  be 
abrogated,  we  have  a  settled  policy,  in  line 
with  the  Monroe  Doctrine,  to  appeal  to.  The 
conclusion  is  irresistible  that  the  trade  rela- 
tions between  Hawaii  and  this  country  are  so 
strong,  the  established  policy  of  this  country 
so  well  understood,  that  its  interests  are  in 
no  danger  whatever. 

Nor  does  the  annexation  of  the  Hawaiian 
Islands  seem  to  promise  great  material  ad- 
vantage. Annexation  of  territory  beyond 
sea  is  not  looked  upon  with  favor  by  our 
people.  This  was  shown  in  the  cases  of 
Cuba  and  Santo  Domingo.  Already  we  have 
free  commercial  intercourse  with  Hawaii ; 
nine  tenths  of  its  exports  come  to  the  United 
States ;  eight  tenths  of  its  imports  are  from 


Foil  HAWAII  129 

our  shores.  What  profit  would  this  country 
reap  from  annexation,  commensurate  with 
the  responsibihties  and  burdens  which  it 
must  assume  f  The  real  and  only  advan- 
tage from  annexation  would  be  gained  by 
the  islands  themselves.  In  a  question  of 
state  policy  w^e  must  consider  our  own 
interests,  not  those  of  others. 

If,  then,  our  rights  are  not  menaced,  our 
self-interest  not  specially  appealed  to,  w^hy 
should  we  go  counter  to  our  established 
policy!  There  exists  no  sufficient  reason. 
While  fostering  our  trade  relations  in  every 
legitimate  way,  both  law  and  policy  demand 
that  we  keep  our  hands  off*  Hawaii. 


AN   INTEROCEANIC    CANAL   IN   THE 
LIGHT   OF  PRECEDENT 


Yale  Keview, 
November,  1895 


AN  INTEROCEANIC  CANAL  IN  THE 
LIGHT  OF  PRECEDENT 

SOONER  or  later,  by  private  enterprise 
or  by  national  aid,  it  is  likely  that  some 
portion  of  the  Central  American  isthmus 
will  be  crossed  by  a  ship-canal  joining  the 
oceans.  The  vast  importance  of  such  a 
waterway  to  the  world's  commerce,  its  vast 
importance  particularly  in  the  development 
of  the  United  States,  needs  no  demonstra- 
tion. To  enable  an  interoceanic  canal, 
however,  to  attain  its  highest  usefulness ;  to 
make  for  it  a  sure  passageway  for  the  flags 
of  all  nations,  unblocked  in  war,  secure  from 
the  vicissitudes  of  semi-tropical  politics;  to 
use  it  as  not  abusing  it— this  is  a  problem 
which  demands  study  and  statesmanship. 

To  show,  if  it  may  be,  that  the  neutraliza- 
tion of  such  a  canal  under  the  guaranty  of 
the  chief  commercial  powers  is  the  status 
most  in  accordance  with  precedent  and  his- 
tory and  our  own  policy,  is  the  object  of 
these  pages. 

133 


134  AN   INTEROCEANIC   CANAL 

The  iuternational  status  of  an  interoceanic 
canal  is  a  question  of  much  perplexity,  upon 
which  the  history  of  the  past  throws  but  a 
partial  light.  Such  a  canal  is  not  a  mere 
strait  like  the  Dardanelles,  the  Danish  Belts, 
or  the  chaimel  of  Magellan,  naturally  formed 
and  indestructible.  Exclusive  jurisdiction 
over  these  waters  as  a  matter  of  right  has 
never  been  conceded  by  the  United  States, 
and  their  passage  is  now  free  to  all  nations. 

On  the  other  hand,  it  is,  in  theory  at  least, 
entirely  subject  to  the  sovereignty  and  con- 
trol of  the  state  within  whose  jurisdiction  it 
lies.  For  example,  the  North  Sea  Canal  in 
Germany,  or,  if  constructed,  the  ship-canal 
across  southwestern  France  from  the  Gra- 
ronne  to  the  Mediterranean,  will  be  con- 
trolled by  those  countries  alone.  Other 
states  may  insist  upon  a  commercial  use  on 
the  footing  of  the  most  favored  nation ;  but 
they  cannot  prevent  an  exclusive  military 
use  by  the  possessory  gov^ernment. 

There  is,  however,  a  vital  difference  be- 
tween such  canals  as  these  and  the  inter- 
oceanic variety,  analogous  though  they  are. 
The  former  are  built,  guarded,  managed  by 
agencies  of  their  own  nationality,  all  ade- 
quate to  the  purpose.  The  latter,  in  point 
of  fact,  must  lack  every  one  of  these  char- 
acteristics. No  country  through  which  an 
interoceanic  canal  has  been   proposed  can 


IN    THE   LIGHT   OF   PRECEDENT  135 

itself  afford  the  capital  for  its  construction. 
Its  military  and  naval  strength  are  inade- 
quate for  protection.  "Without  sure  protec- 
tion, neither  management  nor  construction 
would  be  practicable,  for  capital  is  timid. 
As  compared  with  the  simple  status  of  the 
North  Sea  Canal,  notice,  therefore,  the  com- 
plex character  of  one  across  Panama  or 
Nicaragua.  The  elements  of  complexity 
are  three : 

A  weak  state  granting  the  concession, 
without  capital  or  credit  or  military  power. 

A  foreign  construction  company,  depen- 
dent upon  its  chartering  government  for  that 
security  and  permanence  which  are  its  very 
breath  of  life. 

A  treaty,  between  the  givers  of  concession 
and  of  charter,  which  authorizes  the  work 
and  grants  to  the  chartering  power  the  rights 
under  which  it  acts.  Here  are  limitations 
up(^n  the  jurisdiction  of  the  sovereign  on 
every  hand — limitations,  too,  which  may  be 
capable  of  indefinite  expansion  under  pres- 
sure. And  this  danger  introduces  a  fourth 
element  into  the  problem.  No  commercial 
state  can  afford,  in  justice  to  its  own  com- 
merce, to  permit  that  commerce  in  its  use 
of  such  a  canal  to  suffer  any,  even  the  least, 
discrimination  against  it.  Nor  will  any  one 
state  permit  another,  save  as  the  result  of 
necessity,  the  military  use  of  such  a  canal, 


136  AN   INTEROCEANIC   CANAL 

from  which  use  it  is  itself  debarred.  Con- 
trary as  they  are  to  the  free,  liberal,  en- 
lightened spirit  of  our  time,  such  exclusive 
rights  can  only  be  the  result  of  major  force. 
Both  the  states  in  question,  therefore,  the 
one  conceding  the  right  to  dig  a  canal,  and 
the  other  chartering  and  protecting  the  com- 
pany for  its  construction,  must  be  ready  to 
give  appropriate  guaranties  of  equal  rights 
to  all  other  interested  states. 

The  problem  restated,  then,  is  this:  How 
can  an  interoceanic  canal  be  constructed  and 
administered,  securely  and  continuously, 
when  the  resources  of  the  state  in  which  it 
lies  are  inadequate  to  the  purpose  ?  Toward 
the  solution  of  this  problem  are  presented 
here  those  historical  precedents  which  seem 
to  bear  upon  it.  And  foremost  should  be 
studied  the  Suez  Canal,  the  only  interoceanic 
waterway  in  existence  which  presents  the 
features  described. 

The  Suez  Canal  was  dug  by  a  French 
company  under  a  concession  from  the  Khe- 
dive of  1856,  confirmed  by  the  Sultan,  his 
suzerain.  Article  XIV  of  this  concession 
embodied  a  formal  declaration  that  the 
canal  should  be  always  open  as  a  neutral 
passageway  to  merchant  ships  of  every  na- 
tionality. But  this  was  clearly  insufficient. 
For  Egypt,  even  with  the  possible  backing 
of  Turkey,  was  too  weak  to  make  the  decla- 


IN   THE   LIGHT   OF   PEECEDENT  137 

ration  good.  A  much  stronger  guaranty 
was  needed  for  its  effectiveness.  Moreover, 
nothing  prevented  Turkey  in  case  of  war 
from  blocking  the  canal  or  even  breaking  it. 
The  world's  commerce  was  not  guaranteed 
against  the  guarantor.  For  the  security  of 
this  commerce,  a  European  concert  was 
needed.     What  shape  should  this  take! 

Twenty  years  before  a  spade  was  struck 
into  the  sands  of  Suez,  Prince  Metternich 
had  answered  this  question.  In  1838  Mo- 
hannned  Ali  had  asked  his  opinion  in  regard 
to  a  Suez  Canal  project,  and  received  this 
reply :  that  if  he  wished  to  secure  the  accom- 
plishment of  his  plan  he  should  look  to  a 
neutralization  of  the  canal  by  a  European 
treaty.  On  this  line  the  solution  of  the 
problem  has  been  worked  out,  not  without 
difficulties.  The  first  step  was  taken  in  1873. 
At  Constantinople,  in  December  of  that  year, 
was  signed  an  agreement  that  the  Suez  Canal 
should  be  open  to  transports  and  ships  of 
war  of  all  signatories  alike.  Accepted  by 
TurJ^ey  and  the  canal  company,  this  act 
was  acceded  to  by  nearly  all  the  European 
l^owers,  including  Russia.  Thus  the  prin- 
ciple of  European  control  was  initiated. 

In  1877  came  the  war  between  Russia  and 
Turkey.  It  was  of  the  greatest  importance 
to  commerce  that  the  canal  should  be  free 
from  its  operations.     To    this   end   Great 


138  AN   INTEEOCEANIC   CANAL 

Britain  issued  a  declaration  that  any 
attempt  to  blockade  the  canal  or  its  ap- 
proaches would  be  regarded  as  a  menace  to 
India  and  an  injury  to  the  commerce  of  the 
world,  which  would  compel  the  abandonment 
of  British  neutrality.  This  threat  drew  from 
Prince  Gortchakoff  the  announcement  that 
Eussia  desired  neither  to  interrupt  nor 
threaten  the  canal's  navigation,  but,  on  the 
contrary,  considered  it  an  international 
enterprise,  affecting  the  world's  commerce, 
which  must  remain  free  from  all  attack. 

The  Arabi  outbreak  in  1882  threatened  the 
security  of  the  canal  still  more  seriously, 
and  proved  even  more  forcibly  the  insuffi- 
ciency of  a  merely  Egyptian  guaranty,  the 
necessity  of  European  control.  France 
timidly  declined  the  responsibilities  of  joint 
occupation,  and  thereby  lost  her  share  in 
the  dual  control.  Great  Britain  shelled  the 
insurgents  out  of  Alexandria,  occupied  the 
canal  as  a  base,  and  defeated  Arabi's  forces, 
acting  throughout  at  the  request  of  the 
Khedive.  Her  subsequent  occupation  of 
Egypt,  without  the  urgent  solicitation  of  the 
Khedive,  is  another  matter,  having  a  bearing 
upon  the  protection  of  the  canal,  but  not 
upon  its  international  status.  It  was  in- 
duced rather  by  the  English  ownership  of 
Egyptian  bonds,  and  by  the  threatening  rise 
of  a  fanatical  invader  out  of  the  deserts.    By 


IN   THE   LIGHT    OF   PRECEDENT  139 

those  who  are  always  suspicious  of  England's 
good  faith,  her  renunciation  of  sole  control 
of  the  canal,  while  occupying  Egypt,  is  a 
fact  to  he  pondered. 

Nor  did  the  purchase  of  canal  shares  by 
the  British  government  give  it  additional 
political  rights.  Were  the  Emperor  of  Ger- 
many to  own  a  thousand  square  miles  of 
land  in  Texas,  it  would  none  the  less  be  sub- 
ject solely  to  the  sovereignty  and  jurisdiction 
of  the  State  and  the  nation.  So  in  the  Suez 
Canal  the  jurisdiction  of  the  sovereign  w^as 
not  qualified  by  English  financial  control. 
The  relations  of  state  and  corporation  w^ere 
laid  down  by  the  concession  under  which 
the  English  government  enjoyed  rights  in 
common  with  other  shareholders.  And  this 
would  be  true  in  our  own  case  were  the 
United  States  to  lend  its  credit  to  a  Nicaragua 
canal.  Eights  in  the  line  of  management 
would  be  gained  thereby,  but  the  political 
status  would  not  be  affected. 

In  the  case  of  Suez  this  status  was  not 
yet  definitely  and  satisfactorily  determined. 
By  force  of  circumstances  Great  Britain 
had  assumed,  single-handed,  responsibilities 
which  properly  belonged  to  Europe,  and 
which  she  desired  Europe  to  assume.  An 
invitation  to  the  powers  with  this  end  in 
view  in  1883  remained  unaccepted  for  two 
years.     Then,  in  1885,  a  commission  repre- 


140  AN   INTEROCEANIC   CANAL 

senting  ten  states  met  in  Paris  to  draw  up 
for  consideration  an  international  act  which 
should  offer  a  definite  form  of  control,  capa- 
ble of  guaranteeing  at  all  times  and  for  all 
powers  the  free  use  of  the  Suez  Canal. 

This  was  the  basis  upon  which  was  built 
the  convention  of  Constantinople  of  1887. 
Its  conditions  are  briefly  these : 

The  Suez  Canal  shall  forever  be  free  and 
open,  in  time  of  war  as  well  as  in  time  of 
peace,  to  the  vessels,  whether  merchantmen 
or  men-of-war,  of  all  nations. 

Neither  it  nor  its  approaches  to  the  dis- 
tance of  three  marine  miles  shall  ever  be 
blockaded. 

The  canal  itself,  the  various  works  con- 
nected with  it,  and  the  Sweetwater  Canal, 
which  furnishes  its  fresh- water  supply,  shall 
ever  be  inviolable. 

No  act  of  war  shall  take  place  upon  it, 
though  belligerent  ships  may  be  using  it, 
and  a  twenty-four  hours'  interval  shall  elapse 
between  the  departures  of  hostile  ships  from 
either  terminal. 

No  troops  or  material  of  war  shall  l^e 
landed  along  it,  and  no  ships  of  a  belligerent 
shall  be  stationed  in  its  ports,  but  neutral 
states  may  maintain  not  to  exceed  two  ships 
of  war  each  for  its  protection. 

When,  in  the  opinion  of  the  representatives 
of  the  powers  in  Egyx^t,  the  security  of  the 


IN   THE  LIGHT   OF   PKECEDENT  141 

canal  is  tlireateued,  the  government  of  the 
Khedive  shall  first  be  called  uj)oii  for  its 
protection.  Failing  this,  the  Porte  shall 
have  the  duty  of  treaty  execution  laid  upon 
it ;  and  if  Turkey  sliould  prove  unequal  to 
the  task,  the  signatory  powers  shall  act  in 
concert  with  her. 

No  permanent  fortifications  are  per- 
mitted. 

No  contracting  power  shall  enjoy  special 
territorial  or  commercial  advantages  in  it. 

The  sovereignty  shall  reside,  as  before,  in 
Turkey. 

The  accession  of  as  many  powers  as  pos- 
sible shall  be  secured  to  this  treaty. 

These  stipulations  have  been  agreed  to  by 
Austria,  France,  Germany,  Great  Britain, 
Holland,  Italy,  Spain,  and  possibly  others. 
Russia  and  Turkey  held  aloof,  but  in  1888 
Turkey  yielded  to  pressure  and  acceded. 
The  present  status  of  the  Suez  Canal,  there- 
fore, is  that  of  neutrality  guaranteed  and 
protected  by  the  leading  powers  of  Europe 
with  the  exception  of  Russia. 

The  details  of  this  arrangement  have  been 
given  at  some  length,  since  they  furnish  the 
most  valuable,  in  fact  the  only,  precedent 
for  the  settlement  of  similar  questions  else- 
where— a  settlement,  it  is  right  to  add,  which 
has  not  yet  borne  the  test  of  war. 

In  our  own  diplomacy  there  is  abundant 


142  AN   INTEllOCEANIC   CANAL 

proof  that  for  the  most  part  similar  ideals 
have  prevailed. 

Five  routes  have  been  proposed  for  a  canal 
across  the  Central  American  isthmus.  These 
are,  in  the  order  of  southing,  the  Tehuan- 
tepec  route  in  Mexico ;  the  Honduras  route ; 
the  Nicaragua  route  along  the  San  Juan 
River  and  the  lakes ;  the  Panama  route ;  the 
Darien  or  Atrato  route— these  last  two  lying 
in  the  territory  of  the  United  States  of 
Colombia. 

Of  these  five  the  first  two  were  imprac- 
ticable; our  treaties  with  their  sovereign 
states  therefore  touch  upon  railway,  not 
canal,  transit.  The  treaties  negotiated  by 
the  United  States  which  do  relate  to  inter- 
oceanic  canals  and  their  status  are  three: 
with  New  Granada,  now  the  United  States 
of  Colombia,  in  1846 ;  with  Great  Britain  in 
1850;  with  Nicaragua  in  1867.  The  provi- 
sions of  these  treaties  relating  to  a  canal  are 
here  summarized. 

1.  The  United  States  and  New  Granada, 
1846,  Article  XXV. 

Commerce  of  the  United  States  crossing 
the  Isthmus  of  Panama  is  put  on  an  equal 
footing  as  to  tolls,  duties,  or  other  charges, 
with  the  merchandise  of  New  Granada.  Any 
transit  route  constructed  shall  be  always  free 
and  open  to  the  United  States.  In  return, 
and  to  render  these  rights  secure,  the  United 


IN   THE   LIGHT   OF   PllECEDENT  143 

States  "guarantee  positively  and  efficaciously 
to  New  Granada,  by  the  present  stipulation, 
the  perfect  neutrality  of  the  before-men- 
tioned isthmus,  with  the  view  that  the  free 
transit  from  the  one  to  the  other  sea  may 
not  be  interrupted  or  embarrassed  in  any 
future  time  while  this  treaty  exists ;  and,  in 
consequence,  the  United  States  also  guaran- 
tee in  the  same  manner  the  rights  of  sover- 
eignty and  property  which  New  Granada 
has  and  possesses  over  the  said  territory." 

This  treaty  is  still  in  force,  but  may  be 
terminated  by  either  party  on  twelve 
months'  notice.  Under  this  guaranty  the 
Panama  Railway  was  built  and  operated,  and 
the  United  States  has  in  fact  landed  troops 
for  its  protection. 

2.  The  United  States  and  Great  Britain, 
1850,  commonly  known  as  the  Clayton-Bul- 
wer  treaty. 

This  primarily  sets  forth  the  views  and 
intentions  of  the  contracting  powers  "  with 
reference  to  any  means  of  communication 
by  ship-canal  which  may  be  constructed 
between  the  Atlantic  and  Pacific  oceans,  by 
the  way  of  the  river  San  Juan  de  Nicaragua, 
and  either  or  both  of  the  lakes  of  Nicaragua 
or  Managua."  In  the  second  place,  it  lays 
down  a  general  principle.  Its  main  provi- 
sions are  as  follows : 

Each   government   declares   that   it   will 


144  AN   INTEROCEANIC   CANAL 

never  "obtain  or 'maintain  for  itself  any 
exclusive  control  ovei-  the  said  ship-canal," 
nor  fortify  the  same,  nor  acquire  any  exclu- 
sive privileges  in  it,  nor  fortify,  colonize,  or 
exercise  dominion  over  any  portion  of  Cen-  • 
tral  America. 

The  canal  in  case  of  war  shall  be  free  from 
blockade  to  an  indefinite  distance  from  its 
terminals.  * 

It  shall  be  under  the  joint  protection  of 
the  two  governments,  and  its  neutrality  shall 
be  guaranteed,  that  it  may  be  forever  free 
and  open. 

All  other- states  shall  be  asked  to  enter 
into  similar  engagements.  And  this  is  not 
only  a  specific  contract,  but  a  general  prin- 
ciple for  the  protection  of  any  other-  prac- 
ticable communications  by  rail  or  by  canal 
across  the  isthmus.  Comment  on  this  much- 
abused  and  much-debated  treaty  is  reserved 
for  another  place. 

3.  The  United  States  and  Nicaragua,  1867, 
Articles  XIV,  XV. 

This  grants  to  the  United  States  and  its 
citizens  the  right  of  transit  across  Nicaragua 
from  ocean  to  ocean,  on  any  route  of  com- 
munication, natural  or  artificial,  by  land  or 
water,  which  may  be  constructed,  on  equal 
terms  with  itself.  All  rights  of  sovereignty 
are  reserved. 

"  The  United  States  hereby  agree  to  extend 


IN   THE   LIGHT   OF   PRECEDENT  145 

tlieir  protection  to  all  such  routes  of  com- 
munication, as  aforesaid,  and  to  guarantee 
the  neutrality  and  innocent  use  of  the  same. 
.-  They  also  agree  to  employ  their  influence 
with  other  nations  to  induce  them  to  guar- 
antee such,  neutrality  and  protection.  Free 
transit  is  granted  United  States  troops  and 
ships  under  conditions.  After  protection, 
when  necessary,  has  been  afforded  by  United 
States  tr9ops,  they  must  be  withdrawn." 

It  is  terminable  at  twelve  months'  notice. 

One  common  feature  runs  through  all 
,  these  treaties :  that  whatever  canal  is  built 
shall  be  neutralized,  that  is,  exempted  in 
some  way  from  all  the  operations  of  war. 
The  same  idea  appears  in  the  agreement 
between  the  United  States  of  Colombia  and 
Lieutenant  Wyse,  acting  for  the  French 
Panama  Canal  Company.  By  Article  V  of 
this  instrument  the  "government  of  the 
republic  declares  neutral  in  all  times  the 
ports  of  both  extremiijes  of  the  canal  and 
the  waters'  of  the  latter  from  one  ocean  to 
the  other,"  but  forbids  the  passage  of  the 
war- ships  of  its  enemies  unless  they  have 
gained  the  right  by  treaty. 

When  we  ask,  however,  how  this  neu- 
tralization is  to  be  secured,  there  is  a  lack 
of  uniformity.  In  the  case  of  De  Lesseps's 
Panama  Canal,  it  was  declared  by  the  sov- 
ereign of  the  country.     The  Panama  Canal 

10 


146  ,  AN   INTEEOCEANIC   CANAL 

of  1846  was  to  owe  its  neutrality  to  the 
United  States  alone.  Our  treaties  of  1850 
and  1867,  just  cited,  contenij^late  a  neutrali- 
zation joined  in  by  other  powers,  that  is,  a 
general  concert  of  nations. 

This  remained  our  policy  until  about  1880. 
With  ihe  beginning  of  work  by  De  Lesseps 
at  Panama  came  a  change.  Secretaries 
Blaine  and  Frelinghuysen  argued  for  a  neu- 
tralization to  be  undertaken  by  the  United 
States  exclusively,  and  finding  the  Clay- 
ton-Bulwer  treaty  in  the  way  of  this  pre- 
tension, attacked  that.  Mr.  Blaine  said  it 
needed  modification ;  Mr.  Frelinghuysen 
called  it  voidable;  both  by  implication  ad- 
mitted its  existence.  It  is  true  that  the 
Clayton-Bulwer  treaty  left  a  string  of  mis- 
understandings behind  it.  It  was  entirely 
satisfactory  to  neither  party.  But  what 
cannot  be  denied — and  this  is  emphasized 
here — is  the  fact  that  throughout  the  entire 
history  of  this  country's  attitude  toward  a 
Central  American  canal,  the  neutralization  of 
that  canal  has  been  held  desirable,  a  status 
to  be  effected  sometimes  by  the  sovereign  of 
the  route,  sometimes  by  the  United  States 
alone,  more  often  by  many  states  acting 
together. 

As  in  the  case  of  Egypt  and  the  Suez 
Canal,  neutralization  by  the  sovereign  solely 
is  not  stroug  enough  to  build  on  and  to  build 


IN   THE   LIGHT   OF   PRECEDENT  147 

under.  So  that  really  the  choice  must  lie 
between  a  neutral  status  ^'uaranteed  hy  the 
United  States  alone,  and  one  guaranteed  by 
many  commercial  powers.  To  the  former 
policy  there  are  two  very  serious  objections. 
The  first  is  this:  A  guaranty  of  neutrality 
by  a  single  state  in  the  nature  of  things 
cannot  be  effective.  You  vnay  protect  in  case 
of  attack,  but  you  cannot  neutralize.  The 
guaranty  of  the  neutrality  of  a  state  is  a 
guaranty  that  it  shall  not  be  a  combatant  in 
war,  nor  be  affected  by  its  operations.  As 
against  the  guarantor  this  is  good ;  as  against 
all  third  powers  it  is  worthless.  For  how 
can  one  state  prevent  another  from  the  ex- 
ercise of  its  sovereignty,  of  which  the  right 
to  make  war  is  an  important  feature  ? 

In  Wharton's  "  Digest  of  the  International 
Law  of  the  United  States"  this  view  is 
clearly  presented  (last  paragraph,  §  145) : 
"Neutralization  is  the  assignment  to  a  par- 
ticular territory  or  territorial  water  of  such 
a  quality  of  permanent  neutrality  in  respect 
to  all  future  wars  as  will  protect  it  from 
foreign  belligerent  disturbance.  This  qual- 
ity can  only  be  impressed  by  the  action  of 
the  great  powers  by  whom  civilized  wars 
are  waged  and  by  whose  joint  interposition 
such  wars  could  be  averted.  As  the  neu- 
trality of  the  isthmus  is  by  the  convention 
before  us  [with  New  Granada,  1846]  guar- 


148  AN   INTEROCEANIC  CANAL 

anteed  only  by  the  United  States,  it  is  not  a 
neutralization  in  the  above  sense,  but  only 
a  pledge  and  guaranty  of  protection."  And 
again  and  more  specifically,  the  United  States 
do  not  possess,  and  could  not  raise  for  a  con- 
sidei'able  time,  ships  and  men  enough  to  make 
their  sole  guaranty  of  the  neutrality  of  a  Cen- 
tral American  state  or  of  the  waters  of  a 
Central  American  canal  good  against  all 
assailants.  It  is  easy  to  say  that  the  power 
of  this  great  country  is  illimitable.  That 
may  be  true.  But  to  translate  this  power 
into  ironclads  requires  a  change  of  national 
policy,  years  of  time,  and  unlimited  expen- 
diture. 

There  is,  then,  both  a  legal  and  a  practical 
difficulty— though  both,  in  truth,  are  practi- 
cal—in the  way  of  a  guarantj'-  of  the  neu- 
trality of  a  canal  by  the  United  States  singly. 
But  let  all  commercial  powers  act  in  unison, 
and  see  how  simple  the  thing  may  become. 
Protection  becomes  effective,  and  the  canal 
status  fixed,  because  each  power  for  itself 
unites  in  the  protection,  lays  down  the  status, 
and  renounces  the  right  to  injure.  "Neu- 
tralization" becomes  actual  and  practical 
because  each  power,  in  the  exercise  of  its 
sovereignty,  promises  to  respect  the  neu- 
trality. The  empty  phrase  becomes  a  fact. 
The  argument,  then,  thus  far  is  tliis : 
We  find  in  the  history  of  the  Suez  Canal 


IN   THE   LIGHT   OF   PRECEDENT  149 

a  powerful  precedent  for  the  policy  of  gen- 
eral rather  than  single-handed  canal  pro- 
tection. 

We  find  in  our  own  treaties  and  diplomacy 
a  uniform  desire  to  keep  an  interoceanic 
canal  free  from  all  the  operations  of  war, 
sometimes  inclining  to  the  role  of  sole  pro- 
tector, more  often  desirous  that  this  respon- 
sibility shall  be  assumed  by  all  commercial 
states. 

We  find  that  "  neutralization  "  is  incapable 
of  being  effected  by  the  act  of  a  single  pro- 
tecting power;  that  "protection"  demands 
superior  force  at  command  to  be  adequate. 

We  should  now  be  in  position  to  consider 
the  second  part  of  our  question,  which  is 
this :  In  order  to  exempt  a  proposed  Nicara- 
gua or  other  interoceanic  canal  from  the 
dangers  and  operations  of  war,  is  it  better 
for  the  self-interest  of  the  United  States  that 
this  should  be  attained  by  a  general  or  a  sole 
guaranty!  This  question  is  considered  in 
the  next  chapter. 


AN  INTEROCE ANIC  CANAL  FROM  THE 
STANDPOINT  OF  SELF-INTEREST 


Yale  Review, 
February,  1896 


AN  INTEROCEANIC  CANAL  FROM  THE 
STANDPOINT  OF  SELF-INTEREST 

WHAT  does  the  United  States  want  of 
an  interoceauic  canal?  How  can  it 
best  get  what  it  wants?  These  are  ques- 
tions of  policy  which  may  shortly  require  an 
answer. 

It  is  often  asserted,  in  and  out  of  Congress, 
that  the  United  States  must  "  control "  any 
such  waterway,  and  it  is  commonly  believed 
that  by  lending  the  national  credit  to  the 
company,  by  seeing  the  work  through,  the 
right  to  such  control  will  be  acquired.  The 
first  of  these  statements  is  indefinite;  the 
second  is  mistaken.  The  fixing  of  rates, 
the  choice  of  ofiicials,  the  physical  and  finan- 
cial regulation  of  the  canal,  might  indeed  be 
gained  by  this  government,  as  by  any  other 
controlling  stockholder,  subject  to  the  condi- 
tions of  the  concession;  but  the  political 
control,  the  right  to  determine  its  interna- 
tional status,  its  use  in  war-time,  its  protec- 
tion— this   is    an    attribute   of    sovereignty 

153 


154  AN   INTEROCEANIC   CANAL 

qualified  by  treaty.  As  has  been  argued  in 
the  case  of  Great  Britain  and  the  Suez 
Canal,  the  rights  of  the  stockholders  and  the 
rights  of  the  sovereign  have  no  real  connec- 
tion ;  they  lie  in  different  planes. 

Though  no  control  in  a  real  sense  is  ac- 
quired by  financial  ownership,  it  may  be 
gained  by  a  surrender  of  sovereignty.  The 
simplest  form  which  this  could  take  would 
be  the  transfer  of  sovereignty  over  the  region 
in  which  the  canal  lies.  This  region  might 
be  ceded  to  another  state  or  be  raised  to 
statehood  itself  with  the  condition  of  neu- 
trality attached  to  it.  For  instance,  the 
annexation  of  Nicaragua  by  the  United 
States,  or  the  cession  of  canalized  territory 
to  it,  would  give  us  real  control. 

More  complicated  is  the  condition  which 
results  from  ei  partial  surrender  of  its  juris- 
diction by  the  sovereign  in  favor  of  one  or 
more  powers.  This  would  be  effected  by 
formal  treaty.  An  example  of  this  is  our 
protection  of  the  Panama  Railway,  under  the 
treaty  of  1846  with  New  Granada,  which 
carries  the  right  of  landing  troops  and  ex- 
ercising jurisdiction  for  a  specific  purpose. 
But  is  there  not  another  right  of  action  in 
Central  American  affairs  based  on  the  Monroe 
Doctrine,  which  belongs  to  the  United  States 
exclusively,  and  which  by  common  report  is 
as  well  grounded  as  any  treaty  stipulation ! 


FROM  THE  STANDPOINT  OF  SELF-INTEREST  155 

This  is  apt  to  be  construed  as  warranting 
the  United  States  in  interfering  to  prevent 
any  and  all  European  claims  upon  our  neigh- 
bors in  the  South  which  involve  territory. 
Now,  without  going  at  length  into  the  his- 
tory of  the  Monroe  Doctrine,  it  is  enough  to 
say  that  it  is  a  very  good  thing  when  prop- 
erly used  and  interpreted.  For  it  is  still  the 
settled  policy  of  the  United  States  to  prevent 
European  powers  from  armed  interference 
in  the  politics  of  South  and  Central  American 
states  against  their  will. 

The  French  intervention  in  Mexico  during 
our  Civil  War  is  an  instance  where  the  Mon- 
roe Doctrine  was  properly  applicable.  But 
being  somewhat  vague  and  never  crystallized 
into  a  law,  a  great  deal  of  extraneous  matter 
has  been  read  into  it,  until  it  has  become  a 
political  fetish  superstitiously  worshiped  by 
the  whole  tribe  of  Jingoes.  They  will  have 
it  mean  the  right  of  interference  by  the 
United  States,  instead  of  what  it  really  is — 
a  protest  against  foreign  interference.  They 
would  make  of  it  a  law  overriding  treaties, 
instead  of  an  expression  of  policy  quite  sub- 
ordinate to  treaties.  They  hail  it  as  the 
Lmerican  policy,  forgetting  that  Canning 
first  suggested  it.  They  build  upon  it  a 
"manifest  destiny"  theory,  overlooking  the 
fate  of  the  house  in  Holy  Writ  built  upon 
sand. 


156  AN   INTEROCEANIC   CANAL 

The  United  States  has  a  peculiar  interest 
in  the  affairs  of  those  countries  lying  to  the 
south  of  it,  as  being  itself  the  most  powerful 
and  influential  state  on  this  continent.  It 
has  a  peculiar  interest  in  any  canal  which 
will  bring  its  western  and  eastern  coasts 
many  thousands  of  miles  nearer  by  water. 
To  it,  therefore,  belongs  the  right,  nay,  the 
duty,  of  securing  the  use  of  such  canal  by 
its  vessels  of  every  class,  in  war  and  in  peace, 
under  the  most  favorable  terms. 

Emphasizing  all  this,  it  is  asserted  that 
the  Monroe  Doctrine  is  not  the  instrument 
fit  to  accomplish  these  results.  As  well  use 
a  saw  to  drive  a  nail.  You  blunt  your  tool 
and  do  not  gain  the  end  desired. 

The  proper  weapons  are  to  be  sought  for 
in  our  treaties,  made  and  to  be  made,  and  in 
those  general  principles  of  law  which  govern 
the  intercourse  of  nations. 

As  to  the  principles  of  law,  for  lack  of 
specific  rules  to  cover  this  new  question,  we 
have  the  wider  expressions  of  that  order 
which  binds  the  civilized  world  together. 
Such  are  the  principle  of  non-intervention ; 
the  most-favored-nation  treatment ;  freedom 
of  navigation ;  freedom  of  intercourse ;  neu- 
tral interests  paramount  to  belligerent  in- 
terests; good  faith;  observance  of  treaties. 

As  to  treaties,  the  precedents  for  the  treat- 
ment of  an  interoceanic  canal  have  already 


FROM  THE  STANDPOINT  OF  SELF-INTEREST  157 

been  cited.  The  issue  was  there  defined 
between  canal  protection  assumed  by  the 
United  States  alone,  and  canal  neutraliza- 
tion carried  out  by  a  concert  of  nations, 
precedent  being  in  favor  of  the  latter.  In 
the  following  pages  some  considerations  are 
presented  to  show  that  sole  protection  and 
sole  control  by  this  country  are  neither  prac- 
ticable nor  desirable.  This  is  an  argument 
from  the  standpoint  of  self-interest. 

What  does  the  United  States  want  of  an 
interoceanic  caiian  Clearly  it  is  its  unin- 
terrupted use  under  all  circumstances  by 
merchantmen  and  men-of-war  alike,  whether 
itself  a  belligerent  or  a  neutral,  on  the  footing 
of  the  most  favored  nation.  Our  most  ardent 
patriots  have  never  claimed  lower  tolls  than 
other  countries,  nor  exclusive  commercial 
use.  But  is  there  nothing  more?  Is  there 
not  a  darling  wish  entertained  by  some,  for 
which  no  price  seems  too  dear,  and  which 
would  make  the  canal  of  peculiar  value  to 
our  own  land  ?  There  certainly  is.  Though 
not  often  formulated  clearly,  but  wrapped 
rather  in  the  cerement  of  stately  words,  this 
wish  appears  to  be  for  an  exclusive  use  of  the 
canal  by  the  navy  of  the  United  States  when 
a  belligerent.  Suppose,  for  example,  Eng- 
land and  this  country  to  be  at  war :  then  our 
ships  could  pass  the  canal,  could  mass  or 
separate  for  attack  and  defense,  while  her 


158  i.N   INTEROCEANIC   CANAL 

ships  would  be  debarred.  The  value  of  such 
a  right  is  at  once  apparent.  But  is  it  attain- 
able, and  what  would  be  the  cost  f 
The  difficulties  in  the  way  are  these : 
First,  no  power  of  the  first  class  would 
permit  the  negotiation  of  such  an  arrange- 
ment without  a  protest  which  would  probably 
lead  to  war.  To  suppose  that  Germany,  for 
instance,  or  Great  Britain  would  consent  to 
such  a  provision  in  our  favor  would  tax  the 
credulity  of  a  child.  The  very  first  result  of 
such  a  treaty  would  be  a  combined  demand 
of  Nicaragua  by  all  the  maritime  powers 
that  they  each  and  all  be  put  on  the  footing 
of  the  most  favored  nation,  that  their  war- 
ships be  granted  transit  at  all  times  as  well 
as  ours.  This  demand  would  be  reasonable, 
for  how  could  they  afford  to  tie  one  hand 
behind  their  backs  in  advance  of  a  contest  ? 
To  meet  it  successfully  would  require  a 
defensive  alliance  of  the  United  States  and 
Nicaragua,  backed  by  a  fleet  as  large  as  the 
combined  fleets  of  the  remonstrants. 

But  suppose,  for  argument's  sake,  that 
foreign  powers  display  no  such  sensitiveness 
as  to  their  interests  and  their  rights,  and 
fail  to  combine  against  us.  Suppose  that 
our  sole  guaranty  of  the  canal,  couj^led  with 
its  exclusive  military  use,  is  permitted  to 
pass  unnoticed  or  with  a  diplomatic  remon- 
strance merely.      Suppose  the  canal  garri- 


FROM  THE  STANDPOINT  OF  SELF-INTEKEST  159 

soned  by  our  trooiDS,  in  violation  of  the 
Cla}i:on-Bulwev  treaty,  which  had  been  offi- 
cially declared  to  be  aljrogated.  What 
follows  ? 

We  are  the  sole  protectors  and  guarantors ; 
we  must  maintain,  therefore,  on  the  spot  a 
force  sufficient  for  this  end,  or  the  canal  may 
be  broken,  even  ruined.  Single-handed  we 
must  crush  out  riot  and  revolution.  Strange 
responsibilities  in  Central  American  politics 
must  be  assumed,  constant  influence  exerted, 
or  else  our  protection  would  be  nugatory. 
And,  apart  from  local  dangers,  a  war  may 
arise  to  which  we  are  a  party.  We  should 
require  an  army  of  occupation  as  large  as 
any  which  our  enemy  could  land,  a  fleet 
equal  to  that  which  he  could  eciuip,  and  the 
canal  would  be  made  simply  the  first  scene 
of  the  struggle.  It  is  apparent  that  this 
would  involve  a  complete  change  in  the 
policy  which  has  guided  this  republic  from 
its  earliest  years,  that  it  would  result  in  a 
struggle  far  from  our  natural  base,  on  dis- 
advantageous rather  than  advantageous 
ground,  against,  not  in  accord  with,  the  sen- 
timent of  the  political  world. 

There  is  another  objection  to  the  exclusive 
war  use  of  a  canal  by  the  United  States, 
coupled  with  that  guaranty  of  its  neutrality, 
whether  sole  or  general,  which  all  our  treaties 
have  contemplated.     The  two  are  inconsis- 


160  AN   INTEEOCEANIC   CANAL 

tent.  The  exclusive  use  in  war  would  conflict 
with  the  neutral  status.  Imagine  the  per- 
petual neutrality  of  Belgium  qualified  by  an 
exclusive  right  of  transit  across  its  territory 
granted  to  German  armies.  All  powers  must 
approach  a  canal  on  an  equal  footing,  or  its 
neutrality  will  become  an  alliance  between 
its  sovereign  and  the  favored  nation. 

Let  us  suppose,  on  the  other  hand,  that 
our  policy  follows  more  moderate  counsels. 
Guided  by  European  precedent  and  the  pro- 
visions of  our  own  treaties,  it  renounces  the 
attempt  to  shoulder  singly  the  task  of  canal 
protection.  Calling  in  the  cooperation  and 
aid  of  all  powers  likely  to  make  commercial 
use  of  the  canal,  this  country,  taking  the 
lead,  proposes  to  place  it  on  a  footing  of 
neutrality  guaranteed  by  all.  All  have  a 
common  right  of  passage,  in  peace  and  in 
war,  for  war-ships  and  for  merchantmen. 
The  coast  sea  off  the  terminal  ports,  for  a 
distance  of  fifty  or  a  hundred  miles,  is  also 
exempted  from  the  operations  of  war. 
Proper  provision  is  made,  as  in  the  Suez 
Canal  convention,  for  the  avoidance  of 
the  hostile  meeting  of  belligerent  ships. 
Military  occupation  for  internal  security, 
protection  from  outside  pressure,  are  joint, 
not  single.  A  violation  of  the  integrity  of 
the  canal  is  an  attack  upon,  and  will  be 
resented  by,  the  whole  commercial  world. 


FROM  THE  STANDPOINT  OF  SELF-INTEllEST  IGI 

With  absolute  confideiic'e  it  may  be  asserted 
that  such  a  status,  such  a  solution  of  the 
problem  as  this,  would  give  the  United 
States  every  advantage  which  it  could  hope 
to  reap  from  the  canal,  save  and  except  the 
exclusive  right,  as  against  an  enemy,  of  using 
it  in  case  of  w^ar.  Is  this  single  privilege 
worth  what  it  would  cost — the  abandonment 
of  settled  policy,  the  yearly  expenditure  of 
army  and  navy  enormously  increased,  the 
greater  danger  of  political  complication? 
This  price  is  real,  not  imaginary.  A  nation 
with  a  chip  on  its  shoulder  cannot  rely  on 
bluff  and  bluster  alone.  That  this  is  more 
or  less  clear  to  the  advocates  of  a  "  spirited 
foreign  policy  "  is  let  drop  occasionally.  "  I 
would  be  willing  to  go  to  war  to  prevent 
England  from  obtaining  control  of  the  Nica- 
ragua Canal,  or  from  interfering  in  our  con- 
trol of  that  waterway,"  a  member  of  the 
House  is  reported  to  have  said  recently,  amid 
a  chorus  of  approval,  as  if  the  two  were 
equivalent  statements. 

We  may  w^ell  agree  with  him  as  to  his 
first  proposition,  but  just  as  surely  does  it 
follow  that  our  control  would  be  regarded 
with  similar  jealousy  by  other  states. 

Why  go  to  war,  however, — an  expensive 
and  uncertain  business,— when  the  same  end 
could  be  reached  by  general  concert  of 
powers  ?   Why  go  to  war  with  Great  Britain, 


1G2  AN   INTEROCEANIC  CANAL 

in  particular,  on  the  subject  of  canal  control, 
when  by  a  solemn  treaty  that  country  already 
has  renounced  canal  control  f 

But  here  arises  a  serious  question.  That 
Clayton-Bulwer  treaty  of  forty-eight  years 
ago,  which  has  just  been  alluded  to,  is  it 
now  in  force?  Is  it  really  a  good  thing  to 
get  rid  of,  if  in  force  I 

The  charge  has  been  made  that  it  is  no 
longer  valid  because  long  ago  violated  by 
Great  Britain.  This  violation  lay  in  re- 
taining control  over  certain  Central  Ameri- 
can territory  in  spite  of  the  treaty,  the  excuse 
and  defense  being  that  the  treaty  was  not 
intended  to  refer  to  the  status  existing  at 
its  negotiation.  Since  then— very  slowly 
and  very  exasperatinglj^,  it  is  true — all  such 
territorial  claims  have  been  yielded,  the 
Mosquito  protectorate  quite  recently,  until 
nothing  clouds  the  validity  of  this  treaty 
except  what  is  past.  Now,  so  far  as  appears, 
no  responsible  official  in  this  country  has 
ever  claimed  that  this  treaty  is  actually  void, 
but  merely  that  it  should  be  amended  or,  at 
worst,  is  voidable.  A  treaty  unlimited  in 
its  terms  as  to  duration  must  certainly  be 
held  binding  until  notice  of  its  abrogation 
has  been  given.  No  such  notice  exists  in 
this  case.  Two  secretaries  of  state  have 
argued  that  there  was  ground  for  terminating 
it,  and  a  committee  of  Congress  once  reported 


FROM  THE  STANDPOINT  OP  SELP-INTEEEST  163 

in  favor  of  its  abrogation ;  there  the  matter 
dropped.  To  say  that  this  treaty  is  no 
longer  binding,  therefore,  is  to  be  inaccnrate. 
Even  admitting  that  there  is  reason  for  its 
abrogation,  it  must  be  considered  still  in 
force.  And  what  I  desire  to  emphasize  here 
is  the  extreme  impolicy  of  such  abrogation, 
the  very  decided  present  value  of  this  Clay- 
ton-Buhver  treaty  to  the  United  States. 

What  state  is  it,  as  we  are  so  constantly 
told,  which  arbitrates  with  the  strong  and 
bullies  the  weak!  Great  Britain.  What 
state  is  it,  on  the  same  authority,  which  for 
schemes  that  are  subtle,  for  earth  hunger, 
for  trade  expansion  by  fair  means  and  foul, 
for  the  liking  to  have  a  finger  in  every  other 
nation's  pie,  is  most  notorious  ?  Again  Great 
Britain.  She,  then,  is  the  power  most  to  be 
dreaded  as  a  meddler  in  Central  American 
affairs.  If  so,  the  Clayton-Bulwer  treaty 
is  an  instrument  made  to  our  hand.  It  is 
a  bulwark  of  defense,  a  contract  to  be  en- 
forced, not  surrendered.  Listen  once  more 
to  its  terms: 

"The  governments  of  the  United  States 
and  Great  Britain  hereby  declare  that  neither 
the  one  nor  the  other  will  ever  obtain  or 
maintain  for  itself  any  exclusive  control 
over  the  said  ship-canal;  agreeing  that 
neither  will  ever  erect  or  maintain  any  for- 
tifications commanding  the  same,  or  in  the 


164  AN  INTEBOCEANlC  CANAL 

vicinity  thereof,  or  occupy,  or  fortify,  or 
colonize,  or  assume  or  exercise  any  dominion 
over  Nicaragua,  Costa  Rica,  the  Mosquito 
Coast,  or  any  part  of  Central  America." 

Does  Great  Britain  covet  Corn  Island, 
commanding  one  terminal  of  the  Nicaragua 
Canal;  does  she  "exercise  dominion  over" 
Corinto,  to  hold  as  indemnity  for  a  debt ; 
does  she  seek  to  control  the  future  canal  in 
any  way  ?  We  appeal  to  Article  I  of  this 
treaty.  We  do  more — we  enforce  it.  To  an 
aggressive  power  it  is  a  strait-jacket. 

In  a  frank  and  striking  passage  which  is 
contained  in  one  of  Mr.  Blaine's  despatches 
to  Mr.  Lowell,^  this  is  well  expressed:  "I 
am  more  than  ever  struck  by  the  elastic 
character  of  the  Clayton-Bulwer  treaty,  and 
the  admirable  purpose  it  has  served  as  an 
ultimate  recourse  on  the  part  of  either  gov- 
ernment to  check  apprehended  designs  in 
Central  America  on  the  part  of  the  other; 
although  all  the  while  it  was  frankly  admitted 
on  both  sides  that  the  engagements  of  the 
treaty  were  misunderstandingly  entered  into, 
imperfectly  comprehended,  contradictorily 
interpreted,  and  mutually  vexatious."  Why, 
then,  should  we  seek  to  do  away  with  it? 
The  only  possible  reason  can  be,  because  tve 
seek  to  control,  to  occupy,  to  fortify,  to  do 
the  things  we  there  renounce — in  short,  to 
assume  the  aggressive  ourselves.    This,  then, 

1  November  29,  1881.     MSS.  lust.  Gr.  Brit.  For.  Eel.,  1881. 


FROM  THE  STANDPOINT  OF  SELF-INTEREST  1G5 

is  tho  real  object  and  ideal  of  the  opponents 
of  this  treaty.  They  would  throw  away  the 
shield  to  grasp  the  spear  more  firmly.  They 
would  prevent  the  building-  of  a  canal,  unless 
permitted  exclusive  rights  in  it.  They  would 
choose  a  policy  without  regard  to  cost  and 
consequence.  Here,  then,  we  have  come  to 
the  parting  of  the  ways. 

In  the  one  direction  lie  "  peace  with  honor," 
a  growing  trade,  a  traditional  policy,  the 
military  and  naval  establishments  of  to-day, 
the  enforcement  of  the  Clayton-Bulwer 
treaty,  a  well-considered  plan  for  general 
protection  and  guaranty  of  the  canal  which 
commerce  cries  out  for. 

In  the  other  lie  single  control,  the  abroga- 
tion of  every  treaty  which  stands  in  the  way, 
an  army  and  navy  to  make  our  position  good, 
the  exclusive  use  of  the  canal,  as  against  our 
enemies,  by  our  navy  in  time  of  war.  In 
short,  it  is  to  prefer  belligerent  to  neutral 
interests,  and  to  launch  forth  into  the 
troubled  sea  of  foreign  politics. 

To  enforce  or  to  abrogate  the  treaty  of 
1850;  to  use  the  canal  on  the  same  terms 
with  other  states,  or  to  insist  upon  exclusive 
military  privileges  in  it— these  are  the  real 
points  at  issue.  Between  these  policies  let 
the  American  people  choose,  counting  the 
cost  of  each,  and  striving  to  see  which  will 
bring  it  honor  and  true  ascendancy  and  the 
highest  good. 


AN  INQUIRY  CONCERNING  OUR 
FOREIGN  RELATIONS 


Yale  Review, 
August,  1892 


AN  INQUIRY  CONCERNING  OUR 
FOREIGN   RELATIONS 

THE  number  of  controversies  with  foreign 
powers  which  have  arisen  of  late  must 
have  impressed  every  student  in  the  depart- 
ment of  foreign  relations.  Upon  putting 
together  the  facts  involved  in  several  of 
these  "difficulties,"  and  comparing  their 
causes,  the  question  has  presented  itself, 
whether  one  main  cause  has  not  led  to  all  of 
them,  and  if  so,  whether  this  does  not  indi- 
cate a  change  of  foreign  policy. 

This  policy  was  originally  outlined  by 
Washington  in  his  farewell  address,  in  that 
noble  passage  beginning :  "  Observe  good 
faith  and  justice  toward  all  nations;  culti- 
vate peace  and  harmony  with  all."  It  was 
believed  to  consist  in  the  avoidance  of  en- 
croachments upon,  as  well  as  of  entangle- 
ments with,  other  states.  Long  ago  Ave 
reached  the  position  of  indifference  to  for- 
eign influences  which  Washington  aimed  at. 
Too  often  have  we  failed  of  the  good  faith 

169 


170  AN   INQUIRY   CONCERNING 

and  justice  which  he  inculcated.  But  the 
pecuUar  advantages  of  our  position  are  the 
same,  our  duties  are  the  same,  now  as  then.  If 
there  appears  a  change  in  our  foreign  policy, 
we  have  a  right  to  question  it ;  we  may  still 
test  it  by  the  spirit  of  our  early  diplomacy. 

THE   BERING   SEA   CONTROVERSY 

Ever  since  the  recognition  of  our  indepen- 
dence by  Great  Britain,  our  fishery  relations 
with  her  colonies  have  been  in  an  unsettled 
condition.  One  arrangement  has  followed 
another,  the  treaty  of  1818,  in  its  terms  per- 
petual, being  the  basis  upon  which  they  have 
been  built  up.  At  several  periods  in  our 
history  we  have  had  to  complain  of  high- 
handed treatment  of  our  fishermen  and  of  the 
illegal  seizure  of  their  smacks  by  the  pro- 
vincial authorities.  Nor  have  our  fishermen 
been  without  fault,  in  fishing  within  for- 
bidden waters,  occasionally  in  entering  upon 
a  forbidden  traffic.  But  now  the  tables 
are  turned.  Since  1885  United  States  ships 
have  seized  some  and  warned  away  many 
more  of  the  British  Columbian  sealers  for 
operating  in  the  waters  of  Bering  Sea.  The 
controversy  resulting,  as  yet  unsettled,  is 
the  first  on  our  list  to  claim  attention. 

The  habits  of  the  fur  seals  and  tlie  methods 
of  capture  are  as  follows :  During  the  winter 


OUR  FOREIGN  RELATIONS       171 

season  the  seals  are  widely  scattered  in  the 
Pacific  Ocean,  In  April  they  travel  north- 
ward, and  repair  to  certain  breeding-islands 
lying  in  the  Bering  Sea.  One  group  of 
these  islands  belongs  to  Russia,  another  to 
the  United  States.  It  has  been  the  practice 
of  our  government  to  farm  out  its  seal-fishery 
to  a  company,  under  conditions  of  rental,  tax 
per  skin,  and  limitation  of  slaughter.  This 
company's  employees  protect  the  seals  in  the 
Pribjdoff  Islands  from  depredation.  After 
the  females  have  landed,  they  keep  near 
shore  with  their  young.  The  bachelors  of  a 
certain  age  are  quietly  driven  inland  and 
there  killed.  After  some  months,  when  the 
bearing  and  breeding  processes,  thus  ren- 
dered undisturbed,  are  completed,  the  seals 
all  put  to  sea  again.  It  is  in  the  spring  and 
early  summer,  when  the  seals  are  on  their 
way  to  the  rookeries,  in  the  open  sea,  trav- 
ersing the  passages  between  the  fringe  of 
Aleutian  Islands,  which  mark  ofi:  the  Bering 
Sea  from  the  Pacific,  or  cruising  the  coasts, 
that  latterly  they  have  been  intercepted  by 
what  we  term  the  seal-poachers.  These 
men,  belonging  to  the  United  States  as  well 
as  to  British  Columbia,  by  their  indiscrimi- 
nate killing  of  females  as  well  as  of  males, 
and  losing  many,  as  they  must,  through  the 
sinking  of  the  carcasses,  have  seriously 
diminished  the  source  of  supply. 


172  AN   INQUIEY   CONCEENING 

Now  it  is  of  considerable  importance  to 
both  Great  Britain  and  the  United  States  that 
this  sealing  industry  should  be  preserved, 
for  the  skins  are  cured  and  dressed  in  Lon- 
don, while  the  direct  revenue  is  paid  to  this 
country.  A  close  season  and  a  regulated 
slaughter  are  probably  essential  to  preserve 
this  interesting  animal  from  extinction.  The 
real  question  then  is,  whether  such  regulation 
shall  be  brought  about  through  diplomatic 
agreement,  or  whether  we  can  establish  it 
through  force  as  a  matter  of  right.  Over 
our  own  sealers,  and  over  foreign  sealers  in 
our  own  coast  sea,  we  undoul)tedly  have 
jurisdiction.  But  have  we  lawful  jurisdic- 
tion over  the  operations  of  foreigners  many 
miles  from  land,  where  most  of  our  captures 
have  been  made? 

Such  jurisdiction  cannot  arise  from  our 
ownership  of  the  seals,  for  they  are  wild 
animals  uninclosed,  and  can  be  owned  by 
nobody. 

It  cannot  arise  from  the  contention  that 
their  slaughter  by  foreigners  is  coidra  boiios 
mores,  for  that  is  a  meaningless  phrase,  upon 
which  no  legal  rights  of  capture  can  be 
founded. 

Nor,  once  again,  can  it  arise  from  the 
assertion  that  the  Bering  Sea  is  a  mare 
elansiou,  and  not  a  part  of  the  liigh  sea,  since 
that   assertion   cannot  be  substantiated  in 


OUR   FOBEIGN   DELATIONS  173 

fact.  The  Bering  Sea  is  too  vast  to  be 
under  the  control  of  any  one  nation.  The 
territory  of  the  United  States  borders  less 
than  half  of  it.  Russia  gave  up  a  similar 
claim.  It  is  inconsistent  with  the  spirit  of 
modern  politics.  If  we  have  exclusive  juris- 
diction over  the  Bering  Sea,  then,  it  must 
spring  from  our  ownership  of  adjacent  land, 
and  from  that  alone.  For  it  must  always 
be  kept  in  mind  that  jurisdiction  is  not  a 
thing  separate  and  complete  in  itself,  but 
only  an  incident  to  the  possession  of  certain 
territory.  Our  question,  therefore,  presents 
itself  thus:  Has  the  United  States  through 
its  possession  of  Alaska  acquired  exclusive 
jurisdiction  over  the  Bering  Sea?  Here  it 
must  first  be  remarked  that  the  i^resumption 
is  against  us.  The  vast  exclusive  claims  to 
jurisdiction  over  broad  stretches  of  sea,  once 
in  vogue,  have  become  obsolete.  Portugal 
and  Spain  no  longer  assert  peculiar  rights 
in  great  tracts  of  ocean,  with  a  papal  bull  as 
a  warrant.  England  no  longer  compels  for- 
eign ships  to  lower  their  topsails  to  her  in 
the  narrow  seas.  American  fishermen  may 
fish  as  freely  as  Canadians  iu  the  Gulf  of  St. 
Lawrence,  if  they  keep  offshore.  Even  the 
waters  of  the  Bay  of  Fundy,  after  tedious 
disputation  with  Great  Britain,  are  agreed 
to  form  i^art  of  the  high  seas. 

But  the  Alaska  purchase  was  made  from 


174  AN  INQUIRY  CONCERNING 

Russia,  and  it  seems  to  be  from  Russia 
that  we  derive  the  rights  of  jurisdiction  to 
which  we  lay  chiim.  As  expressed  in  its 
diplomatic  correspondence,  our  government 
asserts  that  Russia  had  controlled  the  fish- 
eries of  those  waters  from  their  discovery 
until  1867 ;  that  until  1886  they  had  been  in 
undisturbed  possession  of  the  United  States ; 
that  thereby  an  exclusive  right  had  been 
acquired  in  them.  Our  exclusive  jurisdic- 
tion being  thus  derived  from  Russia,  we 
must  prove  that  she  owned  and  exercised  it, 
and  that  the  Alaska  purchase  treaty  con- 
veyed it. 

It  is  a  fact  that  Russia  once  claimed  ex- 
clusive rights  over  the  coasts  and  waters  of 
the  Bering  Sea  from  the  Straits  to  the  fifty- 
fourth  degree  of  north  latitude.  But  neither 
Great  Britain  nor  the  United  States  would  sub- 
mit to  such  pretensions.  Chancellor  Kent  and 
John  Quincy  Adams  denied  and  opposed  the 
claim.  The  result  of  our  diplomatic  protests 
is  seen  in  the  treaty  of  1824  between  Russia 
and  the  United  States.  "It  is  agreed  that 
in  any  part  of  the  Great  Ocean,  commonly 
called  the  Pacific  Ocean  or  South  Sea,  the 
respective  citizens  .  .  .  shall  be  neither  dis- 
turbed nor  restrained,  either  in  navigation 
or  in  fishing,  or  in  the  power  of  resorting  to 
the  coasts"  at  unsettled  points  for  trading. 
In  1825  a  similar  treaty  was  made  by  Russia 


OUK   FOREIGN   RELATIONS  175 

with  Great  Britain.  Both  treaties  were  lim- 
ited to  ten  years.  It  is  not  practicable  to 
argue  that  tlie  Bering  Sea  was  not  a  portion 
of  the  Pacific  Ocean  in  the  view  of  these 
treaties.  The  Bering  Sea  is  a  body  of  water 
three  times  as  large  as  the  Grulf  of  Mexico, 
separated  from  the  Pacific  by  a  string  of  one 
hundred  and  fifty  islands,  mostly  mere  islets, 
in  a  line  measuring  perhaps  twenty-five  hun- 
dred miles,  with  spaces  as  wide  as  two  hun- 
dred miles  between  them — a  separation  only 
in  name.  The  claim  of  our  government  that 
Russia  had  exercised  undisturbed  exclusive 
sovereignty  over  the  Bering  Sea  until  1867 
is  upset,  therefore,  by  two  treaties  and  by  our 
own  diplomatic  history.  Moreover,  as  Lord 
Salisbury  has  urged,  the  fact  of  non-use  of  a 
right,  even  if  proved,  does  not  imply  aban- 
donment of  that  right. 

Again,  by  Article  I  of  the  convention  for 
the  cession  of  Alaska  was  surrendered  "  all 
the  territory  and  dominion  now  possessed 
by  his  said  Majesty  on  the  continent  of 
America  and  in  the  adjacent  islands,  the 
same  being  contained  within  the  geographi- 
cal limits  herein  set  forth."  Lines  are  drawn 
across  the  ocean  "within  which  the  terri- 
tories and  dominion  conveyed  are  contained," 
but  no  mention  is  made  of  jurisdiction  over 
a  great  stretch  of  sea  as  a  thing  granted. 
No   jurisdiction  was   or  could  be  granted, 


176  AN   INQUIRY   CONCERNING 

except  what  attached  to  the  land  ceded,  and 
that  passed  as  a  thing'  of  conrse.  Whatever 
rights  we  have  in  Bering  Sea  away  from 
Land  exist  only  by  virtue  of  ownership  of 
tliat  land,  and  are  not  distinguishable  from 
similar  rights  attaching  to  governmental 
possession  of  land  elsewhere. 

Russia  based  her  claim  to  exclusive  juris- 
diction over  these  waters  upon  her  owner- 
ship of  all  the  territory  inclosing  them.  Her 
claim  was  successfully  resisted.  We  now  own 
less  than  half  the  coast  that  Russia  did,  and 
yet  are  found  setting  up  the  same  claim. 

Are  not  these  principles  clear? 

The  Bering  Sea  is  part  of  the  high  seas, 
and  sealing,  beyond  the  three-mile  limit  in 
it,  can  be  prevented  only  by  an  exercise  of 
sovereignty  over  it.  Such  right  of  sover- 
eignty we  denied  to  Russia.  Such  right 
we  now  claim,  as  derived  from  Russia.  Such 
right,  if  Russia  possessed  it,  could  only  be 
an  incident  to  the  ownership  of  the  coasts, 
and  could  not  exist  and  be  conveyed  inde- 
pendently. There  is  no  evidence  of  an 
attempt  to  convey  it  independently.  Its 
territorial  right  in  a  portion  of  the  coast 
bordering  the  Bering  Sea  does  not  give  this 
countrj^  exclusive  jurisdiction  over  the  said 
sea  for  a  certain  purpose,  or  for  any  pur- 
pose. Our  fishery  disputes  with  Canada,  the 
precedents  in   our   own    history,  maritime 


OUK  FOREIGN  RELATIONS       177 

law,  common  sense,  all  discredit  the  idea. 
It  is  a  great  and  an  undue  stretch  of  the 
jurisdiction  of  the  Uiiit(3d  States  to  capture 
twelve  ships  and  warn  off  a  great  many  more 
for  engaging  in  a  species  of  fishery  many 
miles  from  land. 

THE    BARRUNDIA    AFFAIR 

Barrundia,  formerly  minister  of  war  in 
Guatemala,  had  been  exiled  in  1885,  and  re- 
sided in  Mexico.  Taking  up  weapons  against 
his  native  state,  he  was  disarmed  by  the 
Mexican  authorities  and  conducted  to  Aca- 
pulco,  there  being  requested  to  leave  the 
country  whose  neutrality  he  had  violated. 
He  accordingly  took  passage  on  the  Pacific 
Mail  steamer  Acapulco  for  Salvador.  She 
touched  at  Guatemalan  ports,  but  Barrundia 
felt  secure  under  the  United  States  flag.  At 
the  first  port,  Champerico,  the  Guatemalan 
authorities  demanded  Barrundia's  surrender, 
but  the  captain  of  the  Acapulco  refused  to 
allow  any  officers  on  board. 

The  Guatemalan  government  then  re- 
quested the  American  minister,  Mr.  Mizner, 
to  direct  Captain  Pitts  of  the  Acapidco  to 
surrender  his  passenger,  charging  him  with 
sedition,  treason,  and  conspiracy  against  the 
government.  Mr.  Mizner  asked  for  and 
received  assurances  of  a  fair  trial  and  no 

12 


178  AN   INQUIKY   CONCEKNING 

death  penaltj^,  in  Barrundia's  behalf,  as  Gua- 
temala was  then  under  military  law. 

The  AcapuJco  came  into  port  at  San  Jose 
August  27,  1890.  Commander  Reiter  of  the 
Banger  boarded  her,  and  was  asked  by  Pitts 
to  protect  his  passenger.  He  replied  that 
he  could  not  act  without  authority  from  the 
governor  of  the  port.  Pitts  then  wired  Mr. 
Mizner,  who  answered  that  the  Acapuko  was 
within  the  jurisdiction  of  Guatemala,  and 
that  the  authorities  had  a  right  to  arrest  any 
one  charged  with  offenses  against  the  laws 
of  their  country.  To  the  Guatemalan  minis- 
ter of  foreign  affairs  he  made  a  similar 
reply,  that  the  United  States  could  not 
object  to  the  exercise  of  local  jurisdiction 
over  the  AcapuJco  while  in  Guatemalan 
waters ;  and  then  reminded  him  of  his  prom- 
ise. Colonel  Torielle  then  boarded  the  Aca- 
pulco  with  a  few  soldiers,  and  demanded 
Barrundia.  Pitts  again  appealed  to  the 
officers  in  the  American  man-of-war,  who 
replied  that  the  matter  was  out  of  their 
jurisdiction.  The  arrest  was  then  attempted. 
Barrundia  drew  pistols,  fired  at  Colonel  Tori- 
elle, and  in  a  scuffle  was  shot  by  the  Guatema- 
lan soldiers.  Mr.  Mizner  protested  against  the 
shooting  as  in  violation  of  the  promise  made 
him.  Shortly  after,  Barrundia's  daughter 
shot  at  Mizner  in  the  legation,  charging  him 
with  being  the  cause  of  her  father's  death. 


OUR  FOREIGN   RELATIONS  179 

There  is  notliing  very  unusual  in  this  petty 
tragedy.  Nothing-  is  clearer  than  that  a  mer- 
chant ship  within  the  waters  of  a  foreign 
state  is  under  that  state's  jurisdiction.  One 
of  our  men-of-war  could  have  furnished 
Barrundia  an  asylum,  had  he  reached  it,  but 
surely  it  is  not  the  business  of  our  navy  to 
exert  itself  actively  in  rescuing  political  ex- 
iles from  the  laws  of  their  offended  states. 
Asylum,  when  it  ceases  to  be  passive,  is  rescue 
— a  very  different  matter. 

Both  Commander  Reiter  and  Mr.  Mizner, 
then,  judged  by  the  rules  and  precedents  of 
international  law,  acted  with  absolute  pro- 
priety. Suppose  that  tlie  Trod,  with  Mason 
and  Slidell  on  board,  had  sailed  into  New 
York  harbor,  would  the  right  of  their  seizure 
have  been  questioned  by  any  power  on  earth  "I 
And  yet— and  this  is  the  point  of  this  whole 
relation— the  action  of  these  two  gentlemen 
j)roved  so  unacceptable  to  their  government 
that  the  one  was  recalled,  and  the  other  re- 
moved from  his  command  with  a  reprimand. 
The  Secretary  of  the  Navy  wrote  to  the  latter : 
"  It  was  your  plain  duty  to  proceed  at  once  to 
meet  the  steamer  before  she  cast  anchor  in 
the  port,  to  warn  the  captain  of  the  danger, 
and  to  offer  to  his  passenger,  should  he  desire 
it,  an  asylum  on  board  your  ship."  Having 
learned  the  facts,  "  it  is  impossible  to  sup- 
pose that  you  would  have  failed  to  offer  the 


180  AN   INQUIRY   CONCERNING 

fugitive  an  asylum.  Such  an  act  could  have 
violated  no  rights  of  the  territorial  govern- 
ment, for  no  rights  over  the  person  of  the 
passenger  could  have  yet  vested;  while  it 
would  have  maintained  the  implied  promise 
of  protection  which  the  United  States  makes 
to  all  who  in  good  faith  embark  under  its 
flag.  By  remaining  inactive  you  neglected 
your  obvious  duties,  and  placed  your  govern- 
ment in  the  position  of  renouncing  those 
who  had  sheltered  themselves  under  its  flag." 
Here,  as  in  the  Bering  Sea  affair,  we  no- 
tice a  marked  extension  of  the  jurisdiction 
claimed  by  the  United  States.  It  announces 
to  its  naval  officers  the  duty  of  protecting 
all  political  refugees  sailing  under  its  mer- 
chant flag,  even  when  within  the  waters  of 
the  country  to  which  those  refugees  belong, 
by  strategy,  if  not  by  force — the  duty  of 
bringing  asylum  to  them,  instead  of  permit- 
ting them  to  seek  it.  This  was  destined  to 
bear  fruit. 

THE  "iTATA"  case 

In  Chile,  in  1890  and  early  in  1891,  Bal- 
maceda,  by  his  arbitrary  and  unconstitu- 
tional conduct,  had  driven  a  portion  of  the 
country  into  rebellion,  but  the  Congression- 
alists  had  no  ammunition.  Arms  and  gun- 
powder they  therefore  must  buy.     This  the 


OUE  FOREIGN   RELATIONS  181 

Itata.,  a  merchant  steamer,  tried  to  do  at  the 
Californiaii  port  of  San  Diego.  She  was 
hospitably  received  at  San  Diego,  spent 
some  time  tliere  quietly,  then  coaled,  and 
was  about  to  put  to  sea.  At  this  point  it 
was  reported  that  a  smaller  boat,  presumably 
loaded  with  materials  of  war  destined  for 
the  Itaia.,  was  waiting  for  her  off  an  island 
out  at  sea.  The  Itata  was  accordingly  seized 
on  the  charge  of  attempted  breach  of  the 
neutrality  laws,  and  a  deputy  United  States 
marshal  put  in  charge.  Unwilling  to  be  thus 
balked  of  his  object,  her  captain  put  to  sea, 
without  his  clearance  papers  and  with  the 
deputy  on  board.  The  latter  was  landed  at 
the  entrance  of  the  bay.  The  Itata  met  her 
tender,  shipped  its  cargo,  and  sailed  for  Chile. 
Thereupon  began  that  sensational  chase  by 
the  new  cruiser  Charleston.,  which  ended,  not 
in  the  capture  intended,  but  in  the  surrender 
of  the  Itata  by  the  Congressional  leaders 
after  she  had  eluded  her  pursuer. 

When  we  apply  the  recognized  law  to  this 
seizure,  chase,  and  surrender, we  are  struck  by 
the  unusual  zeal  of  our  government.  Hither- 
to it  has  been  considered  lawful  for  our  mer- 
chants to  sell  arms  to  all  the  world,  at  peace 
or  at  war.  Fitting  out  an  armed  expedition 
is  illegal,  but  this  was  in  no  sense  such ;  it 
was  a  purely  commercial  transaction.  Bal- 
maceda  had  his  rights  of  capture  of  these 


182  AN   INQUIRY   CONCERNING 

contraband  articles,  but  it  has  never  before 
been  the  pohcy  of  this  government  to  assist 
others  in  enforcing  their  war  rights  of  cap- 
ture for  breach  of  blockade  or  for  carrying 
contraband.  It  is  true  that  the  fact  of 
transhipment  of  arms  outside  the  three-mile 
limit  does  not  alter  the  nature  of  the  trans- 
action, but  the  transaction  was  not  a  guilty 
one,  and  there  was  no  reason  for  such  con- 
cealment. In  leaving  without  clearance  and 
in  carrying  oif  a  deputy  marshal  (said,  by 
the  way,  to  be  merely  a  private  detective, 
and  not  an  officer  of  the  government),  the 
Itata  may  have  technically  violated  our 
revenue  laws ;  but  that  was  the  worst  with 
which  she  could  be  charged,  and  that  was 
the  result  of  an  improper  seizure.  And  how 
must  one  characterize  the  chase  of  the  Itata 
over  thousands  of  miles  of  open  seal  Pur- 
suit hot  and  continuous,  by  a  revenue-cutter, 
for  breach  of  revenue  laws,  has  been  known, 
extending  to  the  high  seas.  But  the  Charles- 
ton started  from  San  Francisco,  five  hundred 
miles  aw^ay,  and  scoured  the  ocean  for  her 
prey,  with  the  intention  of  capturing  her, 
even  if  it  led  to  a  collision  with  a  Congressional 
cruiser  in  Chilean  waters.  Sucn  a  pursuit, 
with  such  an  object,  appears  to  be  absolutely 
novel.  A  state  at  peace  has  no  jurisdiction 
over  the  ships  of  other  nationalities  on  the 
high  seas,  except  on  suspicion  of  piracy. 


OUK   FOEEIGN   llELATIONS  183 

Such  a  stretch  of  jurisdiction  on  the  part 
of  the  most  powerful  state  on  this  continent 
must  necessarily  appear  an  alarming  matter 
to  all  its  neighbors.  The  Itata  wa-s  brought 
back  to  San  Diego,  lay  there  awaiting  trial 
for  several  months,  and  then  the  case  against 
her  was  dismissed,  as  well  as  that  against  the 
tender  Robert  and  M'uuiie.  They  had  com- 
mitted no  breach  of  our  laws  in  the  judg- 
ment of  our  courts. 

This  Itata  matter  naturally  created  a 
sentiment  among  the  Congressionalists  hos- 
tile to  this  country.  Her  surrender,  dictated 
by  the  desire  of  that  party  to  stand  well  with 
the  government  at  Washington,  and  by  their 
lack  of  a  political  status,  left  a  sore  spot, 
which  their  sudden  success  did  not  lessen. 
Obtaining  ammunition  from  a  European 
source,  the  Congressionalists  at  last  were 
enabled  to  take  the  field,  and  Bahnaceda  and 
his  party  chiefs  were  defeated.  In  view  of 
the  wish  of  the  United  States  to  advance  its 
political  and  commercial  influence  in  Chile, 
this  failure  of  our  minister  resident  and  of 
our  admiral  to  "  pick  the  winner  "  was  most 
unlucky.  The  poor  Balmacedists  fled,  fear- 
ing the  vengeance  which  their  cruelties  had 
provoked,  and  some  naturally  sought  asylum 
at  the  United  States  embassy.  At  the  cost 
of  much  discomfort  this  was  accorded  by 
Mr.  Eagan,  as  it  had  been  accorded  to  the 


184  AN    INQUIRY   CONCERNING 

Congressional  fugitives  when  Balmaceda 
was  supreme. 

Now  this  right  of  asjdum  in  the  South 
American  republics  is  one  that  is  governed 
by  a  usage  rather  different  from  that  in  vogue 
on  the  European  continent.  The  legations 
are  permitted  to  shelter  political  fugitives 
almost  universally,  and  Chile  in  this  instance 
did  not  attempt  to  question  Mr.  Eagan's 
privilege.  At  the  same  time,  the  corre- 
spondence of  our  various  secretaries  of 
state  shows  that,  though  recognizing  this 
difference  of  usage,  they  do  so  with  reluc- 
tance, believe  that  it  should  be  construed 
strictly,  and  deem  it  inconsistent  with  true 
equality  of  states. 

Thus,  in  the  printed  personal  instructions 
to  diplomatic  agents  (1885),  we  find  that 
"this  government  does  not  sanction  the 
usage,  and  enjoins  upon  its  representatives 
in  such  countries  the  avoidance  of  all  pre- 
texts for  its  exercise." 

Mr.  Frelinghuysen  to  Mr.  Langston,  in 
Hayti  (1883),  uses  the  same  words. 

Mr.  Fish  to  Mr.  Preston,  in  Hayti  (1875), 
argues  at  some  length  against  the  frequent 
recourse  to  asylum  in  the  legation,  "  espe- 
cially in  the  governments  to  the  south  of 
us,"  since  "  such  a  practice  obviously  tends 
to  the  encouragement  of  offenses  for  which 
asylum  may  be  desired." 


OFE   FOKEIGN   RELATIONS  185 

Mr.  Fish  to  Mr.  Gushing,  in  Spain  (1875), 
characterizes  the  practice  as  an  annoyance 
and  embarrassment  to  the  ministers  whose 
legations  are  thus  used,  and  to  their  govern- 
ments, and  as  a  wrong  to  the  government 
and  people  where  it  is  practised ;  to  be  mis- 
chievous in  its  tendencies,  and  to  tend  to 
political  disorder. 

Mr.  Seward,  in  1868,  expresses  himself 
thus :  "  The  right  of  a  foreign  legation  to 
afford  an  asylum  to  political  refugees  is  not 
recognized  by  the  law  of  nations  as  applica- 
ble to  civilized  or  constitutionally  organized 
states."  The  chronic  revolutionary  condition 
of  many  of  the  South  American  nations  has 
caused  the  usage  to  be  recognized.  "We 
have,  how^ever,  constantly  employed  our 
influence  for  several  years  to  meliorate  and 
improve  the  political  situation  in  these 
republics,  with  an  earnest  desire  to  relin- 
quish the  right  of  asylum  there.  In  the 
year  1867  we  formally  renounced  that  right 
in  the  republic  of  Peru." 

Mr.  Webster,  in  1851,  to  Mr.  Peyton,  in 
Chile,  writes :  "  Acquiescence  by  the  govern- 
ment of  Chili  on  former  occasions  in  the 
exercise  of  the  hospitality  of  asylum  in  its 
larger  sense  may  preclude  that  government 
from  objecting  to  the  continued  granting 
such  hospitality  to  the  same  extent.  At  the 
same  time,  if  that  government  makes  objec- 


186  AN   INQUIKY   CONCEENING 

tion  to  the  granting  of  that  hospitality  to  a 
pai'ticular  political  refugee,  the  minister  of 
the  United  States,  in  whose  house  such 
refugee  is  sheltered,  should  advise  him  that 
this  shelter  can  no  longer  be  afforded." 

Mr.  Clayton  to  Mr.  McCauley  (1849)  states 
that  "  though  the  privileges  of  asylum  in 
South  America  are  more  liberally  dispensed 
than  in  the  leading  European  states,  they 
should  be  in  all  cases  carefully  guarded." 

Mr.  Calhoun,  in  1844,  is  the  only  secretary 
of  state  to  take  the  opposite  tone :  "  The 
right  of  diplomatic  asylum  in  revolutionary 
times  and  in  revolutionary  countries  should 
be  indulgently  construed." 

Taking  this  almost  uniform  policy  as  our 
test,  we  find  that  the  asylum  extended  the 
Balmacedists  by  Mr.  Eagan,  acting  under 
instructions  from  Washington,  was  exces- 
sive, in  that  it  was  granted  to  so  large  a 
number,  in  that  its  duration  was  unlimited, 
and  particularly  in  that  a  safe-conduct  out 
of  the  country  was  insisted  upon,  and  finally 
obtained,  as  a  corollary  to  the  right  of 
asylum. 

While  the  controversy  over  this  matter 
was  in  progress,  many  seamen  of  the  United 
States  steamship  Baltimore,  on  shore  leave 
in  Valparaiso,  were  assaulted  by  what  looked 
like  an  organized  mob,  and  two  were  killed. 
This  deplorable  affair  caused  great  excite- 


OUK   FOKEIGN   KELATIONS  187 

ment,  and  something:  like  a  war  spirit  was 
aroused  in  this  country.  Arrests  were  made 
of  persons  suspected  of  the  violence,  and 
the  Chilean  government,  hardly  established 
yet,  expressed  its  regret,  though  not  very 
feelingly.  The  slow  criminal  process  in 
Valparaiso  dragged  along,  and  several  of  the 
sus]3ects  finally  received  light  sentences. 

Meanwhile  the  Baltimore  returned  to  San 
Francisco,  where  an  examination  of  witnesses 
of  this  affray  was  conducted  by  the  judge- 
advocate  of  the  navy.  This,  of  course,  was 
ex  parte,  the  Chilean  government  having  no 
counsel  present.  According  to  the  evidence 
there  adduced,  the  riot  was  proljably  caused 
by  race  feeling,  but  the  first  blow  was  struck 
by  an  American  seaman,  and  the  men  had 
visited  several  saloons,  though  "perfectly 
sober." 

Our  seamen  ashore  in  A-^alparaiso  are  not 
under  the  jurisdiction  of  the  United  States. 
Chilean  law  and  procedure  alone  are  appli- 
cable to  them.  It  is  only  when  we  have 
reason  to  believe  that  gross  injustice  has 
been  done  that  we  have  a  claim  to  review 
their  findings.  In  the  New  Orleans  lynch- 
ing we  insisted  that  the  Italian  government 
should  await  the  action  and  decision  of  our 
courts.  Why  did  we  not  owe  the  same  re- 
spect to  the  Chilean  judge  ?  And  were  not 
the  unwillingness  of  the  executive  to  show 


188  AN   INQUIEY   CONCERNING 

this,  and  its  appeal  from  Chilean  jurisdiction 
in  taking  fresh  ex-parte  evidence  and  basing 
action  upon  it,  an  attempt  to  escape  from 
the  consequences  and  rights  of  that  juris- 
diction and  to  set  up  our  own  in  place  of  it — 
in  other  words,  a  fresh  example  of  the  en- 
lai'ged  view  of  our  rights  of  sovereignty  to 
which  we  are  fast  accustoming  our  people 
and  in  which  we  are  training  our  navy? 

Looked  at  from  this  point  of  view,  it  will 
be  seen  that  all  these  instances  related  show 
one  and  the  same  tendency— an  attempt  on 
the  part  of  this  government  to  stretch  its 
claims  of  jurisdiction  unduly.  Now  what 
does  this  mean,  and  what  will  it  involve  ?  It 
means,  in  the  first  place,  a  departure  from  the 
old  and  safe  policy  of  the  fathers.  It  means 
courting  rather  than  avoiding  foreign  en- 
tanglements. It  means  one  collision  after 
another,  each  with  its  sulphurous  war-cloud 
about  it.  It  means  the  violation  of  former 
precedents,  setting  up  new  ones  in  their 
stead  which  may  prove  awkward,  even 
dangerous.  It  will  encourage  aggressions 
upon  weak  neighbors.  It  will  make  this 
country  hated  and  distrusted  by  its  natural 
friends.  It  will  weaken  its  commercial  posi- 
tion on  this  continent,  throwing  trade  into 
other  channels  than  our  own.  Years  must 
pass  before  Chile  can  forget  her  bitter  ex- 


OUR   FOREIGN   RELATIONS  189 

periences  at  the  hands  of  the  United  States 
and  open  her  arms  to  our  trade  freely. 
International  trade  is  largely  based  on 
sentiment. 

And,  again,  what  will  this  new  policy,  if 
persisted  in,  involve  f  If  we  assume  an  ad- 
vanced position,  we  must  be  prepared  to 
maintain  it.  We  shall  need  a  larger  army; 
a  navy  of  the  first  rank ;  an  increase  of  taxa- 
tion to  pay  for  these;  a  reversal  of  our 
military  and  naval  policy  to  maintain 
them. 

We  should  have,  then,  also  a  much  larger 
admixture  of  foreign  influences  and  foreign 
questions  in  our  domestic  politics.  A  presi- 
dential campaign  might  be  decided,  not  by 
the  belief  of  a  party  as  to  questions  of  cur- 
rency or  the  tariff  or  the  civil  service,  but 
by  its  spirited  foreign  policy.  Would  this 
be  likely  to  give  us  better  government! 

Can  we  afford  to  turn  aside  from  the 
problem  which  is  ever  before  us :  how  a  great 
free  people  can  best  work  out  its  own  salva- 
tion, can  purify  the  ballot,  can  make  capital 
safe  and  labor  contented,  maintain  the  law 
and  keep  corruj^tion  under,  develop  its  re- 
sources and  promote  general  prosperity? 

The  tendency  wliich  has  been  emphasized, 
to  stretch  the  jurisdiction  of  this  country 
beyond  the  law  and  the  usage,  is  not  one 
which  will  stand  still.     It  must  be  checked  at 


190  AN   INQUIKY    CONCERNING 

once  or  grow  greater.  Every  instance  of  it 
will  raise  a  controversy.  Every  controversy 
will  bi'iug  lis  nearer  to  the  necessity  of 
striving  to  be  the  dominant  inflnence  in  the 
domestic  politics  of  every  American  state. 
Can  one  imagine  withont  dread  this  country 
embarked  upon  such  a  sea  of  adventure? 
The  Monroe  Doctrine,  a  doctrine  of  non- 
interference on  the  part  of  European  states 
in  this  continent,  would  be  changed  into  a 
license  to  interfere  on  our  own  part.  Place 
the  burden  of  i-esponsibilities  involved  in 
such  a  position  upon  our  government,  con- 
trast with  this  the  heavy  cost,  the  empty 
glory,  the  nature  of  the  return, — a  harvest  of 
dislike,  distrust,  commercial  jealousy,  and 
discrimination, — what  has  the  political  head- 
ship of  this  continent  to  offer  in  compensa- 
tion? 

Are  not  those  words  of  Washington, 
uttered  then  with  reference  to  European 
powers  and  European  influence,  still  applica- 
ble, not  objectively,— for  we  have  outgrown 
the  possibility  of  fear,— but  subjectively-. 
"  Against  the  insidious  wiles  of  foreign  influ- 
ence (I  conjure  j^ou  to  believe  me,  fellow-citi- 
zens) the  jealousy  of  a  free  people  ought  to  be 
constantly  awake ;  since  history  and  experi- 
ence prove  that  foreign  influence  is  one  of 
the  most  baneful  foes  of  republican  govern- 
ment. .  .  .  The  great  rule  of  conduct  for 


OUR  FOREIGN  RELATIONS       191 

US  ill  regard  to  foreign  nations  is,  in  extend- 
ing our  coiiiniercial  relations,  to  have  with 
them  as  little  political  connection  as  pos- 
sible"? Let  us  look  to  it  that  we  do  not 
reverse  this  wise  counsel. 


THE   FISHERY   QUESTION 


North  American  Review, 
March,  1886 


13 


This  article  was  published  in  the  "  North 
American  Review"  as  long  ago  as  1886. 
The  reciprocity  agreement  criticized  in  it 
has  never  been  revived.  Nor  has  any  per- 
manent settlement  of  this  old  difficulty 
been  arrived  at.  The  article  is  reprinted 
here  because  it  is  believed  that  its  con- 
clusions are  as  applicable  now  as  then, 
and  that  the  present  entente  between  Great 
Britain  and  the  United  States  might  ren- 
der a  settlement  possible. 


THE   FISHERY  QUESTION 

ONCE  more,  for  the  seventh  time  since 
our  history  as  a  nation  began,  the  fish- 
ery question  is  before  us  for  solution.  In 
1783  the  first  grant  of  fishing  privileges  in 
Canadian  waters  was  secured,  though  not 
without  endangering  the  treaty  of  peace 
with  Great  Britain.  After  the  War  of  1812 
it  was  found  impossible  to  obtain  the  revival 
of  these  privileges,  and  it  w^as  not  until  1818 
that  our  fishery  relations  with  Great  Britain 
were  put  on  a  permanent  footing.  By  the 
treaty  of  1818  the  United  States  consented 
to  a  very  serious  limitation  of  the  rights 
which  it  had  formerly  enjoyed. 

Between  1836  and  1851  came  the  move- 
ment of  the  provinces  to  limit  the  conces- 
sions of  the  treaty  of  1818  by  a  new  con- 
struction of  the  three-mile  limit,  and  the 
passage  of  certain  harassing  laws  by  their 
legislatures. 

In  1854  the  reciprocity  treaty  was  signed, 
which  gave  our  fishermen  the  right  to  fish 

195 


198  THE   FISHERY   QUESTION 

in  waters  previously  closed  to  them,  but  at 
the  price  of  free  entry  of  Canadian  lumber, 
fish,  and  certain  other  products.  This 
arrangement  was  allowed  to  terminate  in 
1865,  and  six  years  later,  in  1871,  came  a 
new  form  of  reciprocity  under  the  treaty  of 
Washington,  the  same  treaty  which  provided 
for  the  settlement  of  the  AJahama  claims. 
This  granted  free  fishing  on  the  one  side 
and  the  free  entry  of  fish  on  the  other,  but 
with  a  provision  for  striking  a  balance  be- 
tween the  money  values  of  the  privileges 
which  each  country  had  received. 

In  midsummer  last,  this,  in  turn,  expired, 
and  after  consenting  to  a  temporary  exten- 
sion of  the  treaty  to  avoid  breaking  in  upon 
the  fishing  season,  the  administration  is  now 
face  to  face  with  the  fishery  question  once 
more. 

Is  a  permanent  solution  practicable  ? 

For  a  long  time  past  it  has  been  the  policy 
of  maritime  states  to  build  up  their  fisheries 
in  various  ways.  They  were  a  useful  indus- 
try, furnishing  a  cheap  and  valuable  food 
product,  and  forming  a  convenient  reservoir 
for  seamen  in  case  of  war.  Thus,  by  the 
comity  of  states,  coast  fishermen  have  long 
been  exempted  from  the  operations  of  naval 
warfare,  from  the  capture  and  condemnation 
as  enemy's  property  to  which  even  yet  the 
mercantile  marine  is  subject.     This  policy 


THE   FISHERY   QUESTION  197 

the  United  States  has  imitated.  Until  1854 
it  has  consistently  tried  to  protect  and  fos- 
ter the  coast  fisheries  at  the  national  expense. 
In  the  treaty  of  1783,  for  example,  the  free 
navigation  of  the  Mississippi  was  granted 
as  an  equivalent  for  the  right  to  fish  in 
provincial  waters.  In  1799  a  bounty  of 
thirty  cents  per  barrel  was  granted  on  all 
exports  of  pickled  fish.  In  1813  the  cod- 
fishermen  received  a  tonnage  bounty  under 
conditions.  For  bankers  of  over  thirty  tons 
this  was  four  dollars  per  ton.  In  1819  this 
was  increased  for  smaller  craft,  and  in  1846 
a  duty  of  twenty  per  cent,  ad  valorem  was 
laid  on  all  imports  of  fish.  Finally,  in  one 
of  the  protocols  to  the  treaty  of  Washington, 
a  million  dollars  were  offered  for  the  right 
to  fish  in  Canadian  waters,  not  otherwise 
opened,  in  perpetuity.  Under  the  stimulus 
of  these  bounties  and  duties  the  tonnage 
employed  in  the  coast  fisheries  rapidly  in- 
creased. On  the  whole,  the  thirty  or  forty 
years  following  1818  were  prosperous  ones 
for  New  England  fishermen,  in  spite  of  some- 
what frequent  collisions  between  them  and 
the  provincial  officials.  Our  fishermen  were 
often  tempted  to  smuggle;  they  could  not 
be  always  kept  from  fishing  in  waters  not 
opened  to  them  by  treaty;  serious  mis- 
understanding arose  over  the  three-mile  limit 
inside  which  they  could  not  fish,  and  how  it 


198  THE   FISHERY   QUESTION 

was  to  be  measured.  Many  American  smacks 
were  seized  on  suspicion,  some  confiscated, 
some  rescued  l^y  their  crews,  some  dis- 
charged, but  without  chance  of  damages 
for  illegal  detention.  Both  parties  to  the 
treaty  grew  dissatisfied,  a  new  arrangement 
was  desired,  and  the  treaty  of  185-4:  was  the 
result.  Then,  for  the  first  time,  our  fisher- 
men paid  for  enlarged  fishery  rights,  as  it 
were,  out  of  their  own  pockets.  For,  though 
they  had  a  wider  range  for  their  fishing,  they 
lost  the  protected  market  for  their  fish. 
More  than  this,  the  reciprocity  treaty  built 
up  formidable  competition  in  Canadian 
waters.  Under  the  old  system  the  provincial 
fishermen  were  in  bondage  to  the  traders 
who  supplied  their  outfits.  But,  soon,  with 
the  American  market  for  their  catch,  and 
with  a  demand  on  the  spot  for  their  provi- 
sions, bait,  wood,  and  other  articles,  they 
were  able  to  own  their  boats.  We  are  now 
told  that,  under  the  similar  working  of  the 
1871  arrangement,  they  are  outgrowing  their 
boats,  and  own  many  fishing- smacks.  The 
treaty  of  1854  seems  to  have  been  allowed 
to  expire  at  the  wish  of  our  fishermen.  Prob- 
ably the  immediate  effects  of  the  reciprocity 
treaty  outweighed  in  their  minds  the  pos- 
sible evils  of  a  return  to  the  basis  of  the 
treaty  of  1818.  For  the  next  four  years  an 
experiment  was  tried  by  the  Canadian  gov- 


THE   FISHERY   QUESTION  199 

ernment.  A  license  of  so  much  per  ton  was 
charged  American  smacks,  which  opened  to 
them  the  whole  inshore  fisheries  of  the  prov- 
inces. This  was  fifty  cents  the  first  year, 
one  dollar  the  next,  and  two  dollars  after 
that.  Under  the  two-dollar  arrangement 
the  fourth  year  but  twenty-five  vessels  were 
licensed.  As  the  smacks  were  from  fifty  to 
eighty  tons  burden,  this  indicates  that  our 
fishermen,  about  1870,  did  not  consider  the 
Canadian  inshore  fisheries  worth  an  average 
of  one  hundred  and  fifty  dollars  apiece  to 
them. 

When  the  license  system  failed,  the  prov- 
inces prepared  to  enforce  the  rigor  of  the 
law ;  but  a  new  agreement  was  at  hand,  and 
the  home  government  moderated  their  zeal. 
The  new  reciprocity  treaty  of  Washington, 
with  its  results,  is  still  fresh  in  our  minds. 

The  most  unaccountable  and  unjust  deci- 
sion of  the  Halifax  Commission  awarded  a 
sum  of  five  and  one  half  millions  as  the  ex- 
cess of  value  of  the  privileges  enjoyed  by  the 
United  States  over  those  granted  to  Great 
Britain,  in  spite  of  the  fact  that  the  entire 
market  value  of  all  fish  taken  by  our  fisher- 
men, during  the  term  of  the  treaty,  in  treaty- 
opened  waters,  did  not  equal  this  sum.  This 
again  showed  the  willingness  of  the  govern- 
ment to  aid  its  fishing  interests  at  the 
national  expense.     In  fact,  except  during  the 


200  THE   FISHERY   QUESTION 

first  reciprocity  treaty,  the  government  has 
consistently  pursued  the  policy  of  encourag- 
ing the  fishing  industries  in  the  Northeast  at 
the  public  cost. 

An  important  question  now  presents  itself. 
Under  the  working  of  the  reciprocity  treaties 
how  have  our  fishermen  fared  ?  As  matters 
are  at  present  situated,  are  they  right  in 
wishing  to  discontinue  all  reciprocity  ar- 
rangements— to  return  to  the  basis  of  the 
treaty  of  1818?  And  what  are  their  rights 
under  the  treaty  of  1818?  This  treaty  is 
by  its  terms  perpetual,  and  is  the  founda- 
tion upon  which  all  other  agreements  have 
been  built.  It  granted  the  right  to  fish  along 
the  northern,  the  western,  and  part  of  the 
southern  coasts  of  Newfoundland;  off  the 
Labrador  coast  from  Anticosti  indefinitely 
northward,  and  along  the  shores  of  the  Mag- 
dalen Islands.  For  shelter  and  the  purchase 
of  wood  and  water  only  were  American 
fishermen  to  have  access  elsewhere.  Certain 
rights  of  landing  and  drying  fish  were  also 
granted,  but  these  are  no  longer  valuable,  as 
fish  are  now  differently  cured  and  handled. 
Besides  this  they  have,  of  course,  the  high- 
sea  fisheries,  which  are  free  to  all  men,  and 
which  include  the  greater  portion  of  the  cod 
and  halibut  and  two  thirds  of  the  mackerel 
catch.  Some  few  herring  have  been  caught 
off  Grand  Manan,  some   codfish   bait,  like 


THE   FISHEKY    QUESTION  201 

caplin,  in  the  bays  of  Newfoundland,  and  a 
few  cod  and  lialil)ut  there  and  in  other  j^laces. 

But  it  is  principally  the  inshore  mackerel- 
fishing  in  the  autumn  along  the  coasts  of 
Nova  Scotia,  New  Brunswick,  and  Canada, 
that  the  reciprocity  treaties  have  opened 
to  us.  This  was  once  of  considerable 
value.  The  mackerel-men  met  the  incom- 
ing shoals  off  the  Atlantic  coast  from  New 
Jersey  to  the  capes,  in  the  spring.  A 
little  later  they  followed  them  up  to  Block 
Island,  Cape  Cod,  and  the  Massachusetts 
Bay.  The  Maine  coast  was  a  favorite 
ground,  and  many  vessels  went  no  farther 
eastward.  But  the  majority  sailed  past  the 
Nova  Scotia  coast,  through  the  Gut  of  Canso, 
and  spent  the  late  summer  in  the  Bay  of  St. 
Lawrence,  fishing  broad.  Not  until  autumn 
did  they  avail  themselves  of  the  treaty- 
opened  waters,  particularly  in  the  bight  of 
the  bay  of  Prince  Edward  Island  and  off 
Margaree,  where  mackerel  were  found  close 
in,  in  large  quantities. 

But  now  two  things  have  combined  to 
make  this  late  inshore  mackerel-fishing  of 
little  value.  For  a  number  of  years,  after 
1876,  the  mackerel  seem  to  have  deserted 
those  waters.  They  are  a  capricious  fish, 
very  uncertain  in  their  appearance  and 
movements,  sometimes  swarming  in  vast 
numbers  along  certain  coasts,  and  then  for 


202  THE    FISHERY    QUESTION 

years  deserting  them  almost  altogether. 
Now  they  are  frequenting  the  Bay  of  St. 
Lawrence  again,  but  during  1878, 1879, 1880, 
and  1881  the  bay  fishing  was  a  failure.  And, 
secondly,  the  introduction  of  the  purse-seine 
has  completely  changed  the  fishermen's  pro- 
gram. All  attempts  to  use  the  purse-seine 
in  the  gulfs  have  proved  failures,  with  few 
exceptions,  so  that,  since  1870,  our  mackerel- 
men  have  confined  their  operations  more 
and  more  to  our  own  shores. 

In  1873,  254  fishing-vessels  caught  77,011 
barrels  of  packed  mackerel  in  Canadian 
waters,  of  which  25,670  came  from  within  the 
three-mile  limit.  In  1877,  60  vessels  caught 
7319  barrels,  and  in  1882,  one  vessel  caugl}t 
275  barrels,  of  which  not  over  100  barrels 
came  from  waters  opened  by  the  reciproc- 
ity treaty.  The  value  of  these  100  barrels 
was  a  few  hundred  dollars;  the  amount 
paid  for  the  privilege  of  catching  them, 
$•458,333,  besides  the  remission  of  duty  at 
one  cent  per  pound  on  many  million  pounds 
of  Canadian  fish.  These  striking  figures  ^ 
prove  how  little  use  our  fishermen  make  of 
the  privileges  bought  for  them  by  the  treaty 
of  Washington.  They  show  sufficiently  one 
reason  why  they  believe  a  further  resort  to 
reciprocity  undesirable.     But,  in  their  view, 

1  "Report   of   United    States    Fish   Commission,    1881," 
p.  520. 


THE   FISHERY   QUESTION  203 

there  is  another  and  a  stronger  reason.  Tlie 
remission  of  duty  on  Canadian  fish  has -built 
up  a  powerful  eonipetition  in  the  provinces, 
and  lowers  the  profits  on  their  own  catch. 

In  1869,  during  the  interval  between  the 
reciprocity  treaties,  the  "  Halifax  Chronicle  " 
said:  "From  the  making  of  the  reciprocity 
treaty  until  the  abrogation,  Nova  Scotia  in- 
creased in  wealth  and  population  at  a  most 
extraordinary  rate ;  from  its  abrogation  until 
the  present,  we  have  retrograded  with  the 
most  frightful  rapidity.  Want  of  a  good 
market  has  depreciated  the  value  of  our  coal- 
mines, has  nearly  pauperized  our  fishermen, 
farmers,  and  miners ;  and  should  this  want 
not  be  supplied  in  the  only  wnry  it  can  be, 
by  a  new  treaty  w^ith  the  United  States, 
Nova  Scotia  will  in  five  years  be  one  of  the 
least  desirable  countries  to  live  in  on  this 
continent."  ^ 

Between  1850  and  1870,  for  example,  the 
settlements  along  the  Gut  of  Canso  were 
greatly  prospered;  the  small  traders  made 
their  fortunes;  the  farmer-fishermen  flour- 
ished. When,  owing  to  the  introduction  of 
the  purse-seine,  Americans  no  longer  resorted 
there,  the  settlements  became  deserted.  The 
traders  moved  away,  and  the  wharves  are 
rotting  down.  This  is  a  single  illustration 
of  the  value  to  the  provinces  of  the  American 

1  Quotod  in  Cape  Aim  "Advertiser"  of  July  2,  18G9. 


204  THE   FISHERY   QUESTION 

trade  at  their  own  doors,  and  of  the  free 
American  market  for  their  fish.  Their  mack- 
erel-fishery was  created  by  the  treaty  of 
1854,  and  since  1873  their  exports  of  pickled 
mackerel  to  the  United  States  have  averaged 
75,000  barrels,  about  one  quarter  of  our 
entire  consumption.  Their  fishing  capital 
in  boats  and  vessels,  their  enterprise,  and 
their  power  of  competition,  have  all  largely 
increased  in  the  mackerel  and  in  other 
fisheries. 

The  articles  in  provincial  newspapers,  the 
speeches  of  Canadian  politicians,  the  de- 
mands of  their  diplomacy,  all  prove  the  same 
thing — the  vast  importance  to  them  of  a  free 
American  market  for  fish.  That  Canadian 
competition  and  the  removal  of  the  duty 
lowered  the  price  of  fish  and  the  profits  of 
our  fishermen  hardly  needs  demonstration. 
Canadian  competition  means  larger  imports : 
shortly  after  the  treaty  of  1871  took  eftect, 
one  quarter  larger ;  in  1880  more  than  twice 
as  large  as  the  average  during  the  interval 
between  the  reciprocity  treaties  when  duty 
was  on.  This  larger  supply  means  lower 
prices  than  would  otherwise  have  obtained. 

The  remission  of  a  duty  of  one  cent  per 
pound  also  lowers  prices;  not  by  one  cent, 
but  by  a  fraction  of  a  cent,  according  to  the 
amount  imported.  Mackerel  averaged  fifty- 
five  cents  per  barrel  lower  during  the  reci- 


THE   FISHERY   QUESTION  205 

proeity  treaties  than  during  the  interval 
between  them.^  In  view  of  facts  such  as 
these,  can  there  be  any  reasonable  doubt 
that,  with  the  fisheries  conducted  as  at  pres- 
ent, reciprocity  inflicts  a  serious  pecuniary 
damage  upon  our  fishing  industries?  Can 
there  be  any  doubt  that  the  Canadians  are 
deriving  great  profit  from  it  I  Our  fishermen 
naturally  protest  against  the  renewal  of  a 
reciprocity  arrangement.  The  Canadian 
fishermen  are  eagerly  desirous  of  one. 

Now,  does  it  follow  from  all  this  that  no 
fishery  arrangement  with  Great  Britain  is 
desirable!  Can  we  simply  fall  back  upon 
the  treaty  of  1818,  and  declare  that  we  want 
nothing  more?     I  do  not  think  so. 

The  uncertain  nature  and  habits  of  the 
mackerel  have  been  already  alluded  to. 
They  have  completely  deserted  the  Bay  of 
Fundy.  For  years  they  were  scarce  through- 
out the  whole  Gulf  of  Newfoundland ;  mean- 
w^hile  they  became  plentiful  oft'  the  coast  of 
Maine.  But  no  one  can  predict  how  long 
this  state  of  things  will  continue.  In  a  few 
years  the  situation  may  be  entirely  changed. 
The  mackerel  may  abandon  our  own  shores 
and  swarm  again  in  the  gulf.  Already  they 
are  growing  more  plentiful  there.  Five 
years  hence  our  fishermen  may  clamor  for 
the  privileges  which  they  now  despise.    And, 

1  Documents,  Halifax  Commission  Award. 


206  THE   FISHEKY    QUESTION 

again,  there  are  signs  that  the  purse-seine 
may  be  discarded.  The  mackerel-men  may 
return  to  the  old-fashioned  hook-fishing,  or 
to  jigging.  The  purse-seine  is  vastly  de- 
structive of  fish,  large  and  small  of  all 
qualities  being  captured  together.  Not  a 
year  has  gone  by  since  1870  without  protests 
against  its  use.  Thus,  in  1878,  a  delegation 
of  fishermen  from  Portland  and  Gloucester 
went  to  Washington  to  secure  the  passage 
of  a  law  prohibiting  the  use  of  the  purse- 
seine  in  the  mackerel-fishery.  If  this  should 
take  place,  we  must  again  resort  to  Canadian 
waters,  for  hook-fishing  works  there  better 
than  on  our  own  coast. 

What  does  follow  is  that  reciprocitj^  is  no 
longer  wise  or  admissible.  It  is  reciprocity 
only  in  name.  What  we  grant  the  Canadians 
is  of  constant  and  great  value.  What  they 
grant  us  is  of  fluctuating  and  doubtful 
value.  This,  then,  is  the  point  upon  which 
I  should  insist :  that  free  fishing  and  the  free 
entry  of  fish  should  no  longer  be  coupled  to- 
gether. They  have  no  necessarj^  relation. 
The  one  was  taken  simply  as  the  most  con- 
venient diplomatic  equivalent  for  the  other. 
With  our  present  knowledge,  to  balance  one 
against  the  other  is  a  pure  speculation,  and 
likeh^  to  be  a  losing  one.  Let  each  question  be 
argued  on  its  own  merits.  Shall  we  secure  the 
opening  of  all  Canadian  waters  for  our  fisher- 


n\7 


THE   FISHERY   QUESTION  207 

men  1  I  believe  that  a  wise  and  statesmanlike 
foresight  demands  this.  Nothing  is  more 
fooli^^h  than  to  argue  that,  because  we  do  not 
need  it  now,  we  shall  never  need  it.  A  change 
in  the  habits  of  the  fisli,  or  a  change  in  the 
methods  of  the  fishermen,  would  make  it 
indispensable ;  and  both  are  possible.  If  we 
rely  on  the  treaty  of  1818  alone,  when  our 
smacks  resort  again  to  the  gulf  we  shall  at 
once  have  a  repetition  of  the  difficulties  and 
controversies  which  marked  the  old  order  of 
things.  Arbitrary  arrests ;  armed  resistance ; 
the  question  of  the  three-mile  limit ;  the  right 
to  navigate  the  Gut  of  Canso ;  the  right  of 
transhipment;  bitter  feeling;  cruisers  con- 
fronting one  another ;  unpleasant  diplomatic 
struggles— all  these  rise  up  from  the  past  to 
witness  against  it.  How  shall  we  secure  the 
opening  of  Canadian  waters  ?  I  reply,  hi/  the 
l)aym€nt  of  a  lump  simi  for  the  right  to  fish  in 
perpetuity.  This  was  tried  in  1871.  It  is 
in  accordance  with  the  precedents  of  our 
past  history.  It  would  open  forever  privi- 
leges which  may  become  of  very  great  value. 
It  would  solve  the  fishery  question  finally. 
It  would  heal  a  long-open  sore.  This  is  a 
good  time  to  buy,  when  what  our  neighbors 
have  to  sell  seems  worthless.  They  need  the 
trade  of  our  fishermen.  It  is  a  wise  policy 
for  them  to  encourage  this  without  equiva- 
lent.    They  could  well  afford  to  open  to  us 


208  THE   FISHERY   QUESTION 

their  waters  simply  for  the  traffic  our  vessels 
would  bring.  Matters  have  changed  since 
1871.  The  refusal  of  a  million  for  this  privi- 
lege then  does  not  imply  the  refusal  of  half 
that  sum  now. 

With  all  waters  opened  to  our  fishermen, 
they  can  compete  on  favorable  terms  with 
all  rivals,  and  enable  us  to  approach  our 
second  inquiry  with  less  restraint. 

Hitherto  we  have  regarded  solely  the 
interests  of  our  fisheries.  When  we  ask  if 
a  duty  shall  be  laid  on  foreign  fish,  however, 
it  affects  the  nation  at  large.  This  is  purely 
an  internal  question,  and  our  inquiry  might 
properly  end  here.  But  the  statement  of 
this  second  question  may  be  of  interest.  It 
is  this:  Shall  we  protect  the  fishermen's 
market  by  a  duty  on  all  foreign  fish,  and 
raise  the  average  value  of  their  catch  at  the 
expense  of  the  fish-eating  population !  This 
is  a  tax  on  the  food  of  the  poor.  It  is  not  a 
heavy  tax.  Duty-free,  Canadian  imports  of 
fish  bear  a  comparatively  small  proportion 
to  our  whole  consumiition :  of  mackerel, 
one  fourth;  of  other  fish,  less.  Our  lake 
fisheries,  and  those  along  the  southern  coast, 
are  growing,  free  from  competition.  The 
consumption  of  fresh  fish  has  largely  in- 
creased, owing  to  quicker  transportation 
and  better  packing,  so  that  salted  fish  is 


THE   FISHERY   QUESTION  209 

relatively  less  valuable.     This  modifies,  but 
does  not  change,  the  question. 

Having  bought  for  our  fishermen  enlarged 
fishery  rights,  is  it  necessary  to  maintain  for 
them  a  protected  market?  The  conditions 
of  this  problem  may  change,  and,  if  we  leave 
ourselves  free,  we  may  change  our  policy 
from  time  to  time,  but  may  leave  it  a  purely 
internal  question.  But  with  reciprocity — 
giving  free  entry  of  fish  for  the  free  rights 
of  fishing — we  make  it  an  affair  of  foreign 
policy ;  we  give  up  our  liberty  of  action,  and 
tie  our  hands  for  years. 


14 


THE   BERING   SEA  AWARD 


Yale  Law  Journal, 
1894 


THE   BERING   SEA   AWARD 

DURING  the  year  1893  one  more  instance 
was  added  to  a  list  already  consider- 
able and  honorable,  of  disputes  successfully 
settled  by  special  arbitration  on  the  part 
of  Great  Britain  and  the  United  States. 
The  award  of  the  commission,  to  which 
the  settlement  of  five  questions  relating  to 
the  sealing  controversy  was  referred,  was 
made  in  August.  It  may  be  of  interest 
to  attempt  very  briefly  to  state  what  was 
and  what  was  not  decided  by  this  award, 
and  to  characterize  the  policy  of  our  gov- 
ernment and  the  arguments  of  our  counsel 
in  view  of  it. 

The  facts  agreed  upon  between  the  parties 
were  that  the  fur-seal  was  largely  dimni- 
islied  in  numbers  and  seemed  threatened 
with  extinction.  But  there  existed  an  ir- 
reconcilable difference  of  opinion  as  to  the 
cause  of  this,  the  experts  of  the  United 
States,  most  of  them,  holding  that  pelagic 
slaughter  was  accountable  for  it,  while  those 

213 


214  THE   BERING   SEA   AWARD 

of  Grreat  Britain  maintained  that  these  un- 
happy results  sprang  from  the  unscientific 
methods  of  killing  on  the  Pribyloff  Islands 
practised  by  the  licensees.  The  question 
at  issue  was  this:  Has  the  United  States 
acquired,  either  through  an  exclusive  juris- 
diction over  the  waters  of  the  Bering  Sea 
or  through  a  property  right  in  seals  breeding 
there,  the  right  to  protect  them  in  the  open 
sea  by  force,  or  must  such  protection  spring 
from  the  joint  action  of  the  two  govern- 
ments? And  if  the  latter  is  true,  what 
regulations  are  necessary  to  accomplish  the 
purpose?  The  fact  that  Great  Britain  was 
willing  to  join  in  the  reference  of  this  latter 
question  is  an  important  one.  It  indicated 
clearly,  what  she  had  maintained  throughout, 
though  not  always  with  sufficient  energy  to 
overcome  the  hampering  influences  of  the 
British  colonies  on  this  continent,  that  she 
desired  to  preserve  the  seals  from  threatened 
extinction,  that  the  real  question  was  one  of 
method,  but  that  she  objected  to  the  asser- 
tion of  exclusive  right  m  the  matter  by  the 
United  States.  This  fact  should  be  taken 
as  the  key  to  her  policy.  It  certainly  made 
the  task  of  our  government  simpler,  and,  as 
may  appear  later,  its  second  policy  of  doubt- 
ful expediency. 

With  this  preface  let  us  see  what  the  actual 
award  was. 


THE   BERING    SEA   AWARD  215 

In  the  first  place,  it  decided  that,  though 
the  United  States  succeeded  to  all  the  rights 
of  Russia  in  Alaska,  its  islands  and  waters, 
as  acquired  by  the  Seward  purchase  of  1867, 
exclusive  jurisdiction  over  the  Bering  Sea, 
outside  of  a  coast  sea  stretching  a  cannon- 
shot  from  land,  was  not  one  of  them.  In 
this  all  the  arbitrators  concurred  save  one, 
Senator  Morgan. 

Again,  the  same  arbitrators  decided  that 
Great  Britain  had  never  recognized  an  ex- 
clusive jurisdiction  on  the  part  of  Russia 
over  the  seal-fisheries  in  the  Bering  Sea  out- 
side of  the  usual  territorial  waters. 

Thirdly,  it  decided  unanimously  that  the 
Bering  Sea,  as  mentioned  in  the  treaty  of 
1825  (between  Great  Britain  and  Russia), 
formed  part  of  the  Pacific  Ocean. 

And,  lastly,  it  decided,  the  United  States 
arbitrators  both  dissenting,  that  this  country 
has  "  no  right  to  the  protection  of  a  property 
in  the  seals  frequenting  its  islands  in  the  Be- 
ring Sea,  when  the  same  are  found  outside  the 
ordinary  three-mile  limit."  Thus  the  claim 
of  the  United  States  to  an  exclusive  right  to 
protect  the  Pribyloff  seals  at  sea,  whether 
arising  from  jurisdiction  or  from  ownership, 
was  denied. 

Proceeding  now  to  the  regulations  for 
their  protection,  made  necessary  by  this 
denial  of  the  right  of  our  country  alone  to 


216  THE   BERING   SEA   AWARD 

deal  with  the  subject,  the  arbitrators,  by  a 
vote  of  four  to  three,  the  Canadian  and  both 
American  members  dissenting,  laid  down  the 
following  scheme : 

Sealing  shall  never  be  carried  on  within 
sixty  geographical  miles  of  the  Pribyloff 
Islands. 

Within  the  Bering  Sea,  excluding  this 
sixty-mile  zone,  and  over  a  wide  stretch  of 
the  North  Pacific  Ocean  (north  of  the  lati- 
tude of  Port  Harford  in  southern  California, 
and  east  of  the  one  hundred  and  eiglitieth 
degree  of  longitude),  sealing  shall  be  allowed 
on  these  conditions  only :  by  sailing-vessels ; 
under  special  license;  carrying  a  distin- 
guishing flag ;  from  August  1  to  May  1 ; 
using  neither  nets,  guns,  nor  explosives ; 
with  provision  for  reporting  number  and 
sex  of  the  take,  and  date  and  place  of  cap- 
ture; and  with  vague  regulation  of  the  fit- 
ness of  the  crews.  From  these  regulations 
the  Indians  were  exempted  under  certain 
conditions. 

Subject  to  revision  after  five  years,  these 
rules  will  govern  the  action  of  the  two  powers 
until  they  agree  to  abolish  or  modify  them. 
Whether  they  are  fitted  to  secure  their  object, 
the  preservation  of  the  fur-seal,  the  sequel 
only  can  show.  Doubtless  in  part  they  are 
difficult  of  determination,  e.  g.,  the  position 
of  the  sixty-mile  limit  in  foggy  weather ;  and 


THE   BERING   SEA   AAVARD  217 

in  part  they  may  prove  easy  to  evade.  Their 
close  season  is  rather  short,  but  they  cover 
very  much  more  water  than  the  mere  Bering 
Sea.  Much  good  may  fairly  be  hoped  for 
from  them. 

One  or  two  points  in  the  controversy  were 
not  decided.  Though  suggesting  the  total 
stoppage  of  sealing  on  land  and  sea  for  two 
or  three  years  by  both  governments,  this 
was  not  insisted  upon. 

The  liability  of  the  United  States  for 
damages  on  account  of  the  captured  sealers 
seems  clear  from  this  award,  but  no  sum  of 
damages  was  assessed.  This  will  require 
future  negotiation.  It  will  be  interesting  to 
see  whether  nidirect  damages  for  increased 
insurance  and  for  loss  of  prospective  earn- 
ings will  be  claimed,  as  in  the  Alahama  cases. 
For  damages  on  the  score  of  loss  of  prospec- 
tive earnings  during  the  pendency  of  the 
arbitration  proceedings,  the  treaty  of  April 
18,  1892,  which  renewed  the  modus  viveifdi, 
itself  provides.  It  must  be  remembered  that 
the  freedom  of  the  seas  is  upheld,  so  that 
subjects  of  third  states  are  not  debarred 
from  hunting  seals  in  any  manner  they  may 
choose.  Perhaps  Russia  and  Japan  and 
Mexico,  France  and  Germany,  may  be  per- 
suaded to  accede  to  these  rules.  Otherwise 
there  may  be  similar  trouble  with  their  sub- 
jects, or  a  transfer  of  sealing- vessels  to  their 


218  THE   BERING   SEA   AWARD 

flags.  To  include  them  was  Mr.  Bayard's 
intention  in  the  negotiation  undertaken  near 
the  close  of  the  first  Cleveland  administra- 
tion, and  Russia  had  signified  her  assent. 

This  leads  us  to  notice  how  completely  the 
outcome  of  the  whole  matter  proves  to  be  on 
the  lines  then  followed.  Canada  blocked  the 
way,  but  surely  it  would  have  been  wiser  to 
persist  in  trying  to  secure  what  was  wanted 
by  further  negotiation,  rather  than  to  try 
threats  and  force,  to  assume  a  position  which 
has  since  proved,  and  which  might  have  been 
seen  to  be,  untenable.  This  mistaken  line 
of  action  has  resulted  in  further  destruction 
of  seal  life,  in  the  incurring  of  considerable 
liability  for  seizures,  and  in  a  good  deal  of 
unnecessary  friction. 

Little  stress  was  laid  in  the  argument  of  our 
counsel  upon  the  claim  to  jurisdiction  over 
the  Bering  Sea.  This  was  found  untenable 
ground.  But  the  claim  to  a  property  right  in 
the  Pri])yloff  seals  after  their  departure  from 
the  islands  was  strongly  and  ingeniously 
urged.  Here  was  an  animal,  whose  skin  is  the 
basis  of  a  considerable  industry,  with  well- 
defined  habits  attaching  it  to  a  certain  portion 
of  the  United  States  soil,  putting  to  sea  for 
the  major  part  of  the  year,  but  always  with 
the  intention  of  returning.  On  land,  the  bear- 
ing, breeding,  and  nursing  processes  were 
regulated  and  protected  by  a  beneficent  gov- 


THE   BEKING   SEA   AWARD  219 

ernment.  The  killing  process,  which  also 
awaited  a  part  of  the  herd,  was  properly 
restricted.  A  property  right  in  the  seals 
existed  at  the  islands ;  it  did  not  lapse  when 
they  put  to  sea,  but,  like  the  ownership  of 
pigeons  in  the  air,  of  deer  escaped  from  a 
preserve,  of  bees  away  from  their  hives, 
must  be  held  to  survive.  The  only  practical 
alternative  was  extinction.  The  freedom  of 
the  seas  for  most  purposes,  of  course,  was 
admitted  to  exist ;  but  when  in  conflict  with 
a  case  like  the  present,  the  laws  of  humanity, 
of  self-defense,  of  state  necessity,  must  be 
paramount.  There  were  thus  philosophical 
arguments  as  to  the  nature  of  property  in 
seals,  and  a  strong  humanitarian  plea  for 
their  preservation.  A  precedent  for  extraor- 
dinary jurisdiction  over  a  portion  of  the  high 
seas  was  found  in  the  British  regulation  of 
the  pearl-oyster  fishery  in  Australasia. 

The  counter-arguments  of  the  British 
counsel  were  directed  mainly  to  prove 
legally  and  historically  a  lack  of  jurisdiction 
over  the  Bering  Sea  vesting  in  the  United 
States. 

One  may  be  allowed  to  say  that  the  prop- 
erty claim  was  more  subtle  and  ingenious 
than  sound.  It  was  novel,  being  for  the 
first  time  applied  to  a  free-swimming  animal. 
Moreover,  it  does  not  seem  to  carry  with  it 
as  a  corollary  the  right  to  protect  by  force 


220  THE   BERING    SEA   AWARD 

against  the  acts  of  subjects  of  other  states, 
in  viohition  of  other  and  better-established 
principles— the  freedom  of  the  high  seas,  and 
the  immunity  from  search  in  time  of  peace. 
It  furnishes  a  powerful  plea  for  the  protec- 
tion of  seal  life,  rather  than  legal  proof  that 
one  country  has  the  right  to  undertake  this 
desirable  work  single-handed. 

In  view  of  the  award,  a  property  right  in 
the  seal  at  sea  must  be  declared  non-existent. 
The  issue  is  likely  to  be  happier  for  its  fail- 
ure to  be  established.  Such  an  inroad  upon 
the  broad  principle  of  a  free  high  sea,  which 
this  country  has  been  foremost  in  maintain- 
ing, would  have  been  regrettable,  and  might 
have  led  to  other  and  more  serious  trouble. 


THE   PRESIDENT'S  MONROE 
DOCTRINE 


The  Forum, 
February,  1896 


THE   PRESIDENT'S  MONROE 
DOCTRINE 

AMONG  the  fundamental  rights  of  every 
-  state  is  that  of  independence.  Now, 
independence  means  the  right  to  be  let  alone. 
In  the  exercise  of  its  independence  each  state 
deals  with  every  other  as  it  sees  fit :  it  fosters 
trade  or  restricts  it ;  it  quarrels  or  it  makes 
friends.  This  is  the  rule ;  interference  in  the 
affairs  of  another  state  is  the  exception,  and 
needs  to  be  justified.  The  necessity  of  self- 
defense  is  the  most  common  excuse  for  such 
interference.  The  balance-of -power principle 
was  based  upon  this,  with  the  maintenance 
of  the  Ottoman  Empire  and  the  Triple  Alli- 
ance as  its  latest  manifestations.  Interven- 
tion to  preserve  the  peace  of  Europe — such 
as  that  which  carved  a  neutral  Belgium  out 
of  the  kingdom  of  the  Netherlands — was 
based  upon  this.  And  it  was  this  which 
called  the  Monroe  Doctrine  into  being.  Let 
us  fix  firmly  in  our  minds  at  the  outset,  then, 

the  undoubted  fact  that  the  declaration  of 
003 


224     THE   president's   MONROE  DOCTRINE 

President  Monroe  was  an  interference  in  the 
affairs  of  other  states,  to  be  justified  only  by 
the  necessity  of  self-defense. 

A  new  instance  of  interference  in  the 
affairs  of  other  states  has  occurred.  Presi- 
dent Cleveland,  in  his  message  to  Congress 
of  December  17,  1895,  declares  that  he  con- 
ceives it  to  be  his  duty  to  ascertain  and 
lay  down  a  boundary-line  between  British 
Guiana  and  Venezuela,  using  every  means 
in  his  power  to  enforce  it.  This,  of  course, 
is  a  threat  of  war.  For  this  interference  the 
President  states  that  the  Monroe  Doctrine  is 
his  warrant.  He  believes  that  doctrine  ap- 
plicable to  the  case  in  question,  and  a  failure 
to  enforce  it  dangerous  to  our  safety. 

Before  taking  up  this  question  of  applica- 
bility, however,  there  are  several  statements 
in  the  message  which  invite  comment  and 
criticism,  bearing  strongly,  as  they  do,  upon 
the  President's  general  position  and  argu- 
ment. He  says:  "It  may  not  be  amiss  to 
suggest  that  the  doctrine  upon  which  we 
stand  is  strong  and  sound,  because  its  en- 
forcement is  important  to  our  peace  and 
safety  as  a  nation,  and  is  essential  to  the 
integrity  of  our  free  institutions  and  the 
tranquil  maintenance  of  our  distinctive  form 
of  government." 

Here  he  clearly  puts  the  question  of 
enforcing  the  Monroe  Doctrine  in  the  Vene- 


THE   president's   MONROE   DOCTRINE     2l25 

zuelan  boundary  dispute  upon  the  proper 
ground— the  self-interest  of  the  United 
States.  We  are  to  enforce  it— supposing  it 
to  be  applicable — because  it  is  to  our  advan- 
tage to  do  so;  because  to  neglect  it  would 
endanger  our  peace  and  safety,  our  free 
institutions  and  form  of  government.  He 
bases  his  fresh  use  of  the  old  doctrine  on  the 
original  ground,  that  of  self-defense.  That 
this  danger,  which  justifies  our  interference, 
really  exists,  I  find  it  very  hard  to  believe. 
It  may  well  be  asked  whether  our  peace  is 
most  threatened  by  an  unsettled  boundary 
in  South  America,  or  by  the  message  itself. 
This  question  of  our  self-interest  will  be  re- 
ferred to  later.  What  I  wish  to  call  attention 
to  here  is  that  the  President  admits  that  his 
action  is  based  upon  utility,  not  upon  duty. 
And  yet  this  warrant  alone  does  not  seem 
to  satisfy  him.  He  wants  legal  justification. 
Accordingly,  he  argues  that,  though  not  i)er- 
haps  "  admitted  in  so  many  words  to  the 
code  of  international  law,"  the  doctrine  is 
yet  a  part  of  it,  "  since  in  international 
councils  every  nation  is  entitled  to  rights 
belonging  to  it ;  and  when  the  United  States 
is  a  suitor  before  the  high  tribunal  that  ad- 
ministers international  law,  the  question  to 
determine  is  whether  or  not  we  present 
claims  which  the  justice  of  that  code  of  law 
can  find  to  be  right  and  valid." 

15 


226   THE  president's  moneoe  doctrine 

This  is  principally  rhetoric.  There  is,  of 
course,  no  "high  tribunal,"  no  "code  of 
international  law,"  except  in  a  metaphorical 
sense.  If  the  passage  means  anything — 
which  is  uncertain — it  means  that  the  Monroe 
Doctrine  is  a  part  of  the  body  of  interna- 
tional law  because  it  is  in  harmony  with  its 
ideas  of  justice.  This  is  an  error.  The 
rules  of  international  law  are  founded  upon 
the  principles  of  natural  justice,  but  every- 
thing consonant  with  its  ideas  of  justice  is 
not  a  rule  of  international  law.  The  punish- 
ment of  the  slave-trade  as  piracy — a  just 
rule,  and  one  laid  down  in  many  treaties- 
is  a  case  in  point.  It  is  not  a  rule  of  inter- 
national law,  because  it  has  never  been  made 
such  by  the  common  consent  or  agreement 
of  nations.  Even  were  the  premise  sound, 
the  conclusion  would  therefore  be  false.  In 
this  contention  the  President  has  been  led 
away  by  Lord  Salisbury,  and  tries  (and 
fails)  to  prove  what  is  not  necessary  to  his 
position— that  the  Monroe  Doctrine  is  a 
part  of  the  body  of  that  law  which  governs 
the  relations  of  states.  It  is  a  poVinj,  not  a 
/«?(?,  either  national  or  international,  and  its 
application  to  each  specific  case— granting 
that  action  is  justifiable  at  all — must  be 
argued  on  grounds  of  policy  alone. 

"  The  Monroe  Doctrine  finds  its  recognition 
m  the  principles  of  international  law,  which 


THE  pkesident's  monkoe  doctkine   227 

are  based  upon  the  theory  that  every  nation 
shall  have  its  rights  protected  and  its  just 
claims  enforced." 

Is  it  necessary  to  remark  that  there  is  no 
such  theory?  Every  state  has  the  right  of  \ 
self-defense.  That  is  the  first  law  of  nations. 
But  to  say  that  every  state  has  a  right  to  be 
protected  and  to  have  its  just  claims  enforced 
by  some  other  state  is  simply  ridiculous.  No ; 
it  is  more— it  is  monstrous.  It  is  a  plea  for 
universal  tranquillity  at  the  expense  of  uni- 
versal interference  and  disturbance.  It  is  a  > 
plea  in  behalf  of  the  status  quo  of  the  world, 
while  inconsistently  it  threatens  to  disturb 
that  status  by  enforcing  the  just  claims  of 
some  states  against  others.  The  justice  of 
the  claim,  it  is  natural  to  infer,  will  be  de- 
cided by  an  ex-parte  commission. 

There  are  other  statements  which  are 
equally  faulty,— as  where  it  is  said  that  the 
doctrine  was  intended  to  apply  to  every 
stage  of  our  national  life,  which  is  something 
that  neither  the  President  nor  we  can  know,— 
but  I  pass  to  the  final  sentence. 

While  deprecating  the  idea  of  war — a 
war  which  no  one  dreamed  of  until  the  mes- 
sage threatened  it— the  President  exclaims : 
"  There  is  no  calamity  which  a  great  nation 
can  invite  which  equals  that  which  follows 
a  supine  submission  to  wrong  and  injustice, 
and  the   consequent  loss  of  national   self- 


228   THE  president's  moneoe  doctrine 

respect  and  honor,  beneath  which  are 
shielded  and  defended  a  people's  safety  and 
greatness." 

Here  is  a  complete  mixing  up  of  two 
persons:  the  one  submitting  to  injustice, 
namely,  Venezuela;  and  the  one  losing  its 
self-respect,  that  is,  ourselves.  Or  does 
the  President  mean  that  we  have  a  divine 
mission  to  follow  Great  Britain  or  any  other 
state  around  and  check  its  aggressions? 
Does  he  mean  that  we  are  knights  errant,  in 
search  of  wrongs  to  right,  of  injustice  to 
repel,  under  penalty  of  losing  our  safety  and 
greatness?  Whichever  version  we  adopt, — 
whether  we  merge  our  individuality  in  that 
of  Venezuela,  or  tilt  at  windmills  like  Don 
Quixote,— it  may  be  questioned  if  our  safety 
and  greatness  are  thus  best  preserved. 

This  is  more  than  mere  dialectics.  The 
President  has  threatened  Great  Britain  with 
war  in  a  certain  contingency ;  he  has  thrown 
business  already  into  great  confusion,  and 
jeopardized  the  nation's  finances,  on  the 
ground  that  our  Monroe  Doctrine  is  a  bind- 
ing law,  is  necessary  to  the  safety  of  our 
institutions  and  form  of  government,  and  is 
applicable  to  the  Venezuelan  boundary  dis- 
pute. If  these  contentions  cannot  be  main- 
tained, his  action  must  be  condemned  as  an 
offense  to  a  friendly  power,  and  a  very  seri- 
ous blunder. 


THE   president's   MONHOE   DOCTRINE     229 

His  argument  for  the  applicability  of  the 
Moiiroe  Doctrine  is  entitled  to  fair  considera- 
tion and  is  a  principal  point  at  issue.  It  is 
as  follows: 

Speaking  of  the  allied  powers,  Austria, 
Prussia,  Russia,  and  France  (England  hav- 
ing withdrawn),  President  Monroe  said  that 
"  we  should  consider  any  attempt  on  their 
part  to  extend  their  SJ^stem  to  any  portion 
of  this  hemisphere  as  dangerous  to  our  peace 
and  safety.  .  .  .  We  could  not  view  any 
interposition  for  the  purpose  of  oppressing 
them  [that  is,  the  South  American  republics 
whose  independence  we  had  recognized]  or 
controlling  in  any  other  manner  their  destiny, 
by  any  European  power,  in  any  other  light 
than  as  the  manifestation  of  an  unfriendly 
disposition  toward  the  United  States." 

The  President,  with  these  words  in  mind, 
says:  "If  a  European  power,  by  an  exten- 
sion of  its  boundaries,  takes  possession  of  the 
territory  of  one  of  our  neighboring  repub- 
lics, against  its  will  and  in  derogation  of  its 
rights,  it  is  difficult  to  see  why  to  that  extent 
such  European  power  does  not  thereby  at- 
tempt to  extend  its  system  of  government  to 
that  portion  of  this  continent  which  is  thus 
taken.  This  is  the  precise  action  which 
President  Moin'oe  declared  to  l^e  '  dangerous 
to  our  peace  and  safety,'  and  it  can  make  no 
difference  whether  the  European  system  is 


230   THE  president's  moneoe  docteine 

extended  by  an  advance  of  frontier  or  other- 
wise." 

The  argument  is  perfectly  clear  and  needs 
no  elaboration.  An  unsettled  boundary 
dispute  between  a  British  colony  and  Vene- 
zuela, a  disposition  to  "  edge  up "  on  the 
latter  in  the  matter  of  territory,  is  an  at- 
tempt to  extend  the  European  system  to  a 
sister  republic  and  to  control  its  destiny. 
On  the  face  of  it  this  is  a  possible  inference, 
but  only  by  emphasizing  the  letter — not  the 
spirit  and  real  intent — of  Monroe's  message, 
and  by  almost  a  perversion  of  words.  Apply 
the  same  language  to  our  Maine  boundary. 
The  valley  of  the  St.  John  was  disputed 
ground.  By  the  Ashburton  compromise  it 
was  divided  between  the  disputants.  Is  it 
a  proper  use  of  language  to  say  that  the  suc- 
cess of  Great  Britain  in  acquiring  the  coun- 
try north  of  the  St.  John  River  to  the  St. 
Lawrence  watershed,  which  we  had  justly 
claimed,  "  extends  a  European  system  to  the 
United  States,  or  controls  its  destiny"? 
Venezuela's  is  a  perfectly  parallel  case. 
Were  she  to  lose  the  whole  region  in  dispute 
by  arbitration  or  by  aggression,  in  neither 
case  would  a  new  system  be  extended  over 
her,  or  her  destiny  be  controlled. 

But  let  us  look  at  the  real  spirit  and  intent 
of  the  Monroe  Doctrine.  One  hesitates  to 
repeat  its  origin,  so  often  has  it  been  related. 


THE   PEESIDENT'S    MONllOE   DOCTRINE     231 

The  allied  powers  had  twice  tried  their  hand 
at  intervention — in  Spain  and  in  Naples. 
This  intervention  was  in  favor  of  absolntism, 
not  of  estal)lisluHl  government ;  for  in  Naples 
a  liberal  movement  was  put  down,  in  Spain 
a  royalist  insurrection  was  helped  up.  Em- 
boldened by  success,  they  then  proposed  to 
apply  their  new  principles  to  this  continent, 
and  to  restore  to  Spain  those  colonies  of 
hers  which  were  trying  to  gain  or  had  gained 
their  independence.  Then  Monroe  declared 
that  such  intervention  would  be  regarded 
by  the  United  States  as  dangerous  to  itself. 
He  announced  a  policy.  That  policy  forbade 
the  substitution  of  monarchical  for  republi- 
can forms  of  government  on  this  continent 
by  European  force.  It  did  not  forbid  the 
existence  of  monarchies  here,  as  Dom  Pedro 
could  testify.  It  did  not  forbid  any  step 
which  the  republics  themselves  chose  to 
take,  but  simply  what  was  forced  upon 
them.  It  was  the  policy  which  fitted  the 
liour  and  the  occasion.  It  was  opportunism. 
This  is  shown  by  the  sequel.  When  Clay, 
in  Januarj^,  1824,  proposed,  in  moderate 
language,  a  legislative  resolution  embodying 
the  President's  doctrine,  no  action  was  taken 
upon  it.  As  the  latest  authoi'ity,  Professor 
Snow,^  well  says:  "The  attempt  to  give  a 
permanent   character   to   the  Monroe  Doc- 

^  "American  Diplomacy,"  p.  294. 


232     THE   PKESIDENT'S   MONROE   DOCTRINE 

trine  failed.  It  would  appear  that  Con- 
gress, considering  the  danger  past,  did  not 
approve  of  adopting  a  general  policy  of  this 
kind  in  the  absence  of  specific  cause." 

In  1826  came  the  Panama  Congress.  A 
league  of  states  was  proposed,  which,  among 
other  things,  was  "  to  take  into  consideration 
the  means  of  making  effectual  the  declara- 
tion of  the  President  of  the  United  States 
respecting  any  ulterior  design  of  a  foreign 
power  to  colonize  any  portion  of  this  con- 
tinent, and  also  the  means  of  resisting  all 
interference  from  abroad  with  the  domestic 
concerns  of  the  American  governments." 

After  much  debate  and  delay,  delegates 
were"  appointed  from  the  United  States. 
They  never  left  this  country,  and  the  con- 
gress amounted  to  nothing.  Mr.  Dana,  in 
his  edition  of  Wheaton's  "  Elements  of  Inter- 
national Law,"  comments  upon  it  as  follows : ' 
"  It  seemed  to  aim  at  introducing,  in  behalf 
of  republicanism,  the  same  principle  of  inter- 
ference which  had  been  attempted  abroad  in 
behalf  of  despotism." 

In  1848,  Yucatan,  in  the  throes  of  internal 
conflict,  offered  its  dominion  to  the  United 
States,  to  Spain,  and  to  Grreat  Britain.  Presi- 
dent Polk  urged  Congress  to  prevent  its 
transfer  to  any  European  power  as  a  colony, 
and  to  reaffirm  the  Monroe  Doctrine.  Cal- 
houn was  a  member  of  Monroe's  cabinet  in 


THE  president's  MONROE  DOCTRINE  233 

1823.  He  was  in  a  j)osition  to  know  what 
the  Monroe  dodarations  meant  and  to  what 
they  were  ap})Ueable.  Speaking  in  opposi- 
tion to  Polk's  suggestion,  he  said:  "They 
were  but  declarations— nothing  more;  .  .  . 
we  are  not  to  have  quoted  on  us,  on  every 
occasion,  general  declarations  to  which  any 
and  every  meaning  may  be  attached."  And, 
again,  he  argued  that  the  doctrine  must  be 
limited  by  the  conditions  under  which  it 
was  spoken,  else  "it  would  have  involved 
the  absurdity  of  asserting  that  the  attempt 
of  any  European  state  to  extend  its  system 
of  government  to  this  continent,  the  smallest 
as  well  as  the  greatest,  would  endanger  the 
peace  and  safety  of  our  country."  The  dec- 
laration, then,  according  to  Calhoun,  was  a 
policy  only,  to  be  followed  or  not,  as  inter- 
est dictated,  and  was  based  upon  the  right 
of  self-defense  and  nothing  else. 

We  approach  now  the  Mexican  adventure 
of  Maximilian.  By  the  power  of  French 
bayonets  Napoleon  III  overturned  the  re- 
public, and  had  that  Austrian  prince  chosen 
emperor  by  a  travesty  of  an  election ;  in 
short,  he  committed  exactly  those  aggres- 
sions from  which  the  Monroe  Doctrine 
warned  foreigners  away.  It  was  a  genuine 
case  of  self-defense  on  the  part  of  the  United 
States,  for  the  French  action  was  really 
taken  to  check  the  growth  of  our  commerce 


234    THE   president's   MONROE   DOCTRINE 

and  influence  in  that  quarter.  A  demon- 
stration of  force  was  proper,  since  the  offen- 
sive act  had  been  ah'eady  consummated. 
The  hands  of  our  government  having  been 
tied  during  the  Civil  War,  after  the  close  of 
that  struggle  a  force  was  moved  to  the 
Mexican  border.  The  French  support  was 
withdrawn,  and  Maximilian  fell.  Thus  was 
the  Monroe  Doctrine  reapplied  on  its  origi- 
nal lines.  This  episode  proves  two  things : 
first,  that  the  principles  announced  by  Presi- 
dent Monroe  were  not  obsolete  in  1867,  and 
are  presumably  still  our  guidance;  second, 
that  the  doctrine,  forty  years  after  its  birth, 
had  met  with  no  enlargement. 

Mr.  Sewai'd,  in  a  despatch  to  Mr.  Kil- 
patrick  in  1866,  gives  his  idea  of  the  Mon- 
roe Doctrine  thus  (I  quote  from  the  United 
States  "  Digest  of  International  Law,"  by 
Wharton,  the  official  collection  of  the  gov- 
ernment) :  "  The  government  of  the  United 
States  will  maintain  and  insist,  with  all  the 
decision  and  energy  which  are  compatible 
with  an  existing  neutrality,  that  the  repub- 
lican system  which  is  accepted  by  any  one 
of  those  [South  American]  states  shall  not 
be  wantonly  assailed,  and  that  it  shall  not 
be  subverted  as  an  end  of  a  lawful  war  by 
European  powers ;  but  beyond  this  position 
it  will  not  go,  nor  will  it  consider  itself 
bound  to  take  part  in  wars  in  which  a  South 


THE   president's   MONROE   DOCTRINE     235 

American  republic  may  enter  with  a  Euro- 
pean sovereign,  when  the  object  of  the  latter 
is  not  the  establishment,  in  place  of  a  sub- 
verted republic,  of  a  monarchy  under  a 
European  prince." 

This  history  and  these  comments  suffi- 
ciently show  that  it  was  the  substitution  of 
a  monarchical  for  a  republican  form  of 
government,  by  European  forces,  at  which 
the  Monroe  Docti'ine  was  aimed.  President 
Woolseyi  concludes  his  treatment  of  the 
subject  with  this  most  applicable  sentence: 
"  To  lay  down  the  principle  that  the  acquisi- 
tion of  territory  on  this  continent  by  any 
European  power  cannot  be  allowed  by  the 
United  States  would  go  far  beyond  any 
measures  dictated  by  the  system  of  the 
balance  of  power ;  for  the  rule  of  self-j^reser- 
vation  is  not  applicable  in  our  case — we  fear 
no  neighbors.  .  .  .  But  to  resist  attempts  of 
European  powers  to  alter  the  constitutions 
of  states  on  this  side  of  the  water  is  a  wise 
and  just  opposition  to  interference.  Any- 
thing beyond  this  justifies  the  system  which 
absolute  governments  have  initiated  for  the 
suppression  of  revolutions  by  main  force." 

Such  icas  the  Monroe  Doctrine.  Any- 
thing other  than  this  is  the  doctrine  of 
somebody  else. 

1  "Introduction  to  thi!  Study  of  luternational  Law,''  6th 
ed.,  p.  56. 


236   THE  peesident's  monkoe  doctrine 

There  is  another  striking  difference  be- 
tween the  old  version  and  the  new.  Presi- 
dent Monroe's  message  nowhere  threatens 
force.  This  fact  has  been  often  commented 
upon.  His  strongest  expression  is  that  we 
should  look  upon  certain  actions  as  evidence 
of  an  unfriendly  disi^osition.  But  President 
Cleveland  is  not  so  tame.  After  suggesting 
a  commission  to  report  upon  the  Venezuelan 
boundary,  he  says:  "When  such  report  is 
made  and  accepted,  it  will,  in  my  opinion, 
be  the  duty  of  the  United  States  to  resist  by 
every  means  in  its  power,  as  a  wilful  aggres- 
sion upon  its  rights  and  interests,  the  ap- 
propriation by  Great  Britain  of  any  lands,  or 
the  exercise  of  governmental  jurisdiction 
over  any  territory,  which,  after  investiga- 
tion, we  have  determined  of  right  belong  to 
Venezuela."  But  for  this  threat  the  message 
would  have  been  regarded  as  a  political 
manifesto ;  with  this  threat  it  is  a  menace  to 
the  peace  of  two  great  states. 

There  is  one  more  consideration,— one 
already  suggested,— the  vital  point  of  the 
whole  matter.  We  may  grant,  though  con- 
trary to  fact,  that  the  Monroe  Doctrine  is 
applicable  to  the  Venezuelan  boundary  dis- 
pute. Proof  must  still  be  furnished  that  a 
failure  to  enforce  it  would  endanger  our 
peace  and  safety.  If  they  are  not  so  en- 
dangered, we  have  no  ground  for  interfer- 


THE  president's   MONROE  DOCTRINE     237 

ence.  The  Monroo  Doctrine  declares  this. 
President  Cleveland  implies  it.  The  com- 
mentators who  have  been  quoted  say  it. 
Does  British  control  over  the  wild  frontier 
region  in  dispute  between  Venezuela  and 
Guiana  really  threaten  the  safety  of  the 
United  States f  If  so,  why  and  how?  We 
are  entitled  to  specifications.  For,  unless 
the  danger  can  be  shown,  an  interference 
is  unwarranted.  Does  Canada  put  our  in- 
stitutions in  jeopardy"?  Does  British  Co- 
lumbia imperil  our  form  of  governments 
If  not,  why  does  this  danger  lurk  in  distant 
Guiana  I  England  has  as  constitutional  a 
form  of  government  as  our  own.  She  is  a 
good  colonizer.  She  carries  order,  justice, 
capital,  into  the  wilds  with  her.  Are  such 
developments  inimical  to  our  safety  ?  Is 
there  anything  which  can  truly  imperil  our 
institutions  or  which  we  should  truly  fear, 
except  the  consequences  of  our  own  igno- 
rance, our  own  dishonesty,  our  own  con- 
ceit? 

At  the  risk  of  tediousness,  may  I  gather 
again  the  threads  of  my  discourse!  The 
Monroe  Doctrine  is  not  a  law ;  it  binds  us  to 
no  action ;  it  was  a  policy  devised  to  meet  a 
particular  case.  That  case  was  the  forcible 
substitution  of  monarchical  for  republican 
forms  of  government  in  American  states  by 
European  action.     It  was  an  act  of  self -de- 


238    THE   PllESIDENT'S   MONROE   DOCTRINE 

fense,  on  no   other  ground  justifiable.      It 
was  not  backed  by  threats  of  force. 

Mr.  Cleveland's  doctrine  is  an  entirely 
distinct  one.  Under  threats,  it  attempts  to 
settle  for  them  the  disputed  boundary-line 
of  two  friendly  states.  It  ^drtually  asserts 
the  right  to  pass  judgment  upon  any  con- 
troversy over  territory  which  an  American 
state  may  have  with  a  European  one,  and  to 
enforce  the  decision.  It  is  interference  in 
the  affairs  of  another  state  which  the  neces- 
sity of  self-defense  does  not  justify.  It  is  a 
long  and  dangerous  step  toward  that  assump- 
tion of  the  headship  of  this  continent  which 
Mr.  Olney  so  tersely  describes  when  he  says 
that  the  United  States  is  "  practically  sov- 
ereign" throughout  America,  and  that  "its 
fiat  is  law."  A  glorious  and  happy  future 
this,  where  the  responsibilities  are  ours,  the 
profit  another's;  where  dreams  of  empire 
under  the  guise  of  a  protectorate  replace 
peaceful  development;  where  our  own  will 
is  our  only  law  ! 


SOME   THOUGHTS  ON  THE  SETTLE- 
MENT  OF   INTERNATIONAL 
CONTROVERSIES 

Paper  Read  June  16,  1896 


SOME  THOUaHTS  ON  THE   SETTLE- 
MENT  OF   INTERNATIONAL 
CONTROVERSIES 

EVER  since  the  early  years  of  this  cen- 
tury the  British  government  has  been 
attempting  to  secure  a  riglit  to  search  for- 
eign ships  suspected  of  trading  in  slaves. 
Through  diplomatic  pressure,  and  even  by 
direct  purchase,  many  treaties  have  been 
negotiated  for  this  purpose,  and  largely  by 
this  instrumentality  the  slave-trade  on  its 
old  lines  has  been  well-nigh  abolished.  This 
is  a  rare  and  remarkable,  perhaps  even  a 
unique,  instance  of  national  humanitarian- 
ism.  States  are  not  altruistic.  From  the 
nature  of  their  organization  they  cannot  be. 
The  object  of  a  state's  existence  is  to  secure 
the  greatest  possible  good  for  its  own  sub- 
jects, not  for  the  subjects  of  another.  We 
do  not  expect  a  business  corporation,  a  col- 
lege, or  even  a  church,  to  prefer  the  welfare 
of  a  similar  institution  to  its  own.     That 

16  241 


242    SOME  THOUGHTS  ON  THE  SETTLEMENT 

would  be  wrong  as  well  as  foolish ;  it  would 
be  a  betrayal  of  trust.  So  it  is  with  the 
state.  In  the  present  condition  of  human 
society,  then,  selfishness  rather  than  altruism 
is  the  necessary  and  fundamental  principle 
of  the  state. 

Now,  since  each  state  will  be  reaching  out 
for  certain  advantages  for  its  subjects,  it 
may  often  happen  that  two  states  at  the 
same  time  grasp  after  the  same  advantage 
and  thus  come  into  conflict.  Conflict  is  the 
law  of  state  life  and  growth.  It  is  as  inevi- 
table as  a  law  of  nature.  But  conflict,  the 
striving  after  the  same  good,  each  for  its 
own,  does  not  mean  war.  In  the  early 
stages  of  human  society  it  might  have  done 
so.  Now,  however,  the  restraining  influ- 
ences are  numerous  and  intricate.  They 
are  of  two  general  kinds,  humanitarian  and 
economic.  A  powerful  deterrent  is  also 
found  in  the  growth  in  importance  of  the 
neutral  influence,  which  discourages  war 
betAveen  its  friends  because  it  dislikes  to 
have  its  trade  disturbed.  I  need  not  enlarge 
upon  these  facts;  they  have  come  under 
the  observation  of  all  of  us;  I  wish  merely 
to  bring  into  juxtaposition  the  inevitable- 
ness  of  collisions  between  states  and  the 
remoteness  of  war  nevertheless,  to  show  the 
great  middle  ground  whioh  we  are  to  at- 
temjjt  to  explore. 


OF  INTERNATIONAL  CONTROVERSIES   243 

Where  the  Niagara  Kiver  emerges  from 
Lake  Erie  it  is  a  broad  and  sluggisli  flood  of 
waters  almost  imperceptibly  flowing  seaward. 
But  after  sixteen  miles  of  gentle  current 
there  come  two  of  tumultuous  rapids  and  then 
the  fall  itself.  This  is  a  not  inapt  image  of 
the  march  of  events  between  the  breaking  out 
of  an  international  difficulty  and  the  catas- 
trophe of  war.  The  quiet  flow  of  river  typi- 
fies the  diplomatic  discussion  of  the  dispute, 
long  drawn  out,  perhaps,  and  devious,  but 
there  is  safety  in  it  all.  At  no  point  is  the 
ship  of  state  helpless  in  the  grasp  of  the 
seetliing  waters.  The  rapids  are  the  type 
of  measures  of  a  different  sort,  which  the 
publicists  call  preliminary  to  war.  These 
are  retorsion,  the  law  of  tit  for  tat,  to  pun- 
ish particularly  some  legal  discrimination; 
reprisals,  the  seizure  of  property  of  the 
offender  or  his  subjects  in  order  to  make 
him  realize  his  wrong  and  your  own  sense 
of  it;  and  embargo,  a  form  of  retorsion, 
which,  as  we  see  in  the  events  leading  up  to 
the  War  of  1812,  may  be  laid  either  to  exert 
pressure  and  remedy  injustice  or  avowedly 
as  a  war  measure.  Even  here,  in  the  midst 
of  the  rapids,  there  are  places  and  moments 
when  safety  is  not  impossible.  Our  good 
ship  may  hug  the  shore,  the  helmsman  may 
realize  his  danger,  and  the  final  mad  rush 
and  deadly  plunge  be  saved.      The  simile 


244  SOME  THOUGHTS  ON  THE  SETTLEMENT 

must  not  be  pushed  too  far,  but  it  will 
answer  to  bring  vividly  before  us  the  three 
steps  of  negotiation  and  amicable  arrange- 
ment, of  preliminary  war  measures,  and  of 
war  itself.  With  one  more  subdivision,  our 
toj^ic  lies  before  us.  An  amicable  interna- 
tional settlement  may  be  brought  about 
through  simple  and  direct  negotiation, 
through  the  mediation  of  a  third  power, 
or  through  arbitration.  Each  method  has  its 
virtues.  Neither  one  can  be  dispensed  with. 
It  is  a  mistake  to  emphasize  one  to  the  ex- 
clusion of  the  others.  To  insist  upon  a  due 
estimate  of  the  three,  to  beg  you  to  preserve 
a  j)roper  proportion  in  your  valuation  of 
them,  is  my  very  earnest  desire. 

When  two  sensible  men  quarrel,  if  sensible 
men  ever  do  quarrel,  the  best  thing  they  can 
do  is  to  get  together  and  talk  their  differ- 
ence over.  In  nine  cases  out  of  ten  they 
can  bring  about  a  settlement.  The  claim  is 
seen  to  be  unfounded  or  is  softened;  the 
words  or  acts  misunderstood  become  clear 
and  harmless;  friendly  and  rational  views 
assert  themselves.  This  typifies  diplomatic 
agreement.  Or,  on  the  contrary,  our  dispu- 
tants are  suspicious  and  stubborn.  Their 
quarrel  is  a  misery  to  their  neighbors.  Pres- 
ently a  mutual  friend  begs  them  both  to 
let  him  examine  their  difference  and  sug- 
gest a  settlement.     He  is  allowed  to  do  so; 


OF   INTERNATIONAL   CONTROVERSIES      245 

both  are  impressed  by  the  good  sense  of  his 
concdusions  and  agree  to  abide  by  them. 
That  is  mediation.  The  settlement  is  sug- 
gested, not  asked  for ;  it  is  recommendatory, 
not  binding.  Or,  thirdly,  and  probably,  this 
kindly  neighbor  will  be  asked  to  be  good 
enough  to  go  about  his  business,  and  the 
quarrel  grows  brisker,  with  a  lawsuit  in  the 
background.  But  they  are  practical  men  and 
economical  men.  A  five-hundred-dollar  fee 
to  litigate  a  fifty-dollar  claim  appeals  to 
neither,  confident  though  he  is  of  the  justice 
of  his  cause.  In  this  frame  of  mind  they 
chance  to  meet,  and  agree  to  refer  their  dis- 
pute to  some  other  neighbor  and  to  accept 
his  judgment  as  final.  That  is  arbitration. 
The  submission  is  voluntary ;  the  decision  is 
final  and  binding. 

But  there  is  one  remark  to  make  if  we 
would  exhaust  the  possibilities.  Should  one 
of  our  disputants,  in  the  passion  of  the  mo- 
ment, reflect  upon  the  character  of  the  other 
or  threaten  his  person,  up  goes  the  latter's 
cane  or  fist,  and  the  breach  becomes  a  fight. 
So  a  nation  resorts  to  arms  to  defend  its 
honor  or  its  national  life. 

This  is  a  homely  but  a  true  simile  of  the 
differences  of  states  and  their  settlement. 
Now,  I  believe  it  is  accurate  to  say  that  the 
mediator  in  international,  as  in  private, 
quarrels  is  apt  to  be  shown  the  door.     This 


246    SOME  THOUGHTS  ON  THE  SETTLEMENT 

is  but  natural,  for  he  suggests  a  settlement 
.before  the  contestants  have  shown  that  they 
desire  one.  Mediation  was  unanimously 
agreed  upon  as  a  means  of  settling  future 
difficulties  by  the  signatories  of  the  epoch- 
making  declaration  of  Paris  in  1856.  They 
have  fought  one  another  since  then,  more 
often  than  they  have  mediated.  The  media- 
tion suggested  ])y  Napoleon  III  in  our  Civil 
War  was  declined  unheard.  Our  north- 
eastern boundary  disjiute  was  referred  to 
the  arbitration  of  the  King  of  the  Nether- 
lands in  1831.  Instead  of  passing  upon  the 
question  submitted,  he  dodged  it  and  recom- 
mended a  certain  compromise  line.  This 
was  virtual  mediation ;  both  parties  de- 
clined it.  Without  multiplying  examples, 
we  may  fairly  say,  tlien,  that  mediation  has 
not  proved,  and  is  not  likely  to  prove,  a  very 
useful  instrument,  and  turn  rather  to  the 
others  described. 

Here  at  the  outset  let  me  say,  without 
hesitation  and  with  all  possible  emphasis, 
that  in  diplomatic  correspondence  we  have 
the  simj^lest,  the  easiest,  the  most  natural, 
the  best  way  of  settling  international  con- 
troversies. Whatever  detracts  from  the 
proper  working  of  this  is  mischievous.  It 
is  a  quiet  way.  Many  and  many  a  question 
is  raised,  discussed,  and  settled  without  ex- 
citing the  attention  of  Congress,  the  notice 


OF   INTERNATIONAL    CONTROVERSIES      247 

of  the  newspapers,  the  passions  of  the  people. 
How  much  better  tliis  is  than  to  expose  the 
moves  of  a  state  department  to  the  daily 
inspection  and  criticism  of  the  undiplomatic 
world !  How  much  of  national  excitement, 
alarm,  hatred,  and  all  uncharitableness  might 
have  been  saved  these  last  few  months,  both 
in  England  and  in  America,  if  the  Venezuelan 
and  the  Transvaal  discussions  had  been  con- 
fined to  dii3lomatic  channels  in  the  good  old 
Avay,  instead  of  taking  both  publics  into  un- 
usual confidence ! 

It  is  an  effective  way.  Great  victories 
have  been  neutralized  by  it,  as  in  the  Con- 
gress of  Vienna  in  1815.  Important  treaties 
have  been  negotiated  by  it;  commerce  has 
been  doubled  or  cut  off,  boundaries  laid 
down,  nations  founded,  by  it.  The  very 
successes  of  arbitration  are  largely  ascrib- 
able  to  it.  It  was  diplomacy  that  inserted 
the  "  three  rules  "  in  the  treaty  of  Washing- 
ton as  the  standard  of  neutral  duties  by 
which  Great  Britain  agreed  to  be  judged. 
These  rules  made  the  Geneva  arbitration  a 
success,  but  the  British  case  a  failure. 

It  is  a  friendly  way.  It  is  both  melan- 
choly and  ludicrous  to  read  the  frequent 
criticisms,  from  certain  sources,  upon  the 
conduct  of  our  resident  foreign  ministers. 
If  they  dine  out,  and  make  pretty  speeches 
afterward  (grace  after  meat),  they  are  "  un- 


248   SOME  THOUGHTS  ON  THE  SETTLEMENT 

American."  If  they  observe  punctiliously 
the  forms  of  diplomatic  society,  they  are 
"truckling  to  an  aristocracy."  If  they  ob- 
serve ordinary  judgment  and  common  sense 
in  their  dealings,  they  are  charged  with 
"  cowardice."  If  they  fail  to  right  the  indi- 
vidual complaint  offhand,  they  "lack  sym- 
pathy." The  ideal  minister,  in  the  eyes  of 
such  critics,  is  the  noisy  bully  who  carries  a 
chip  on  his  shoulder  and  has  designs  on  the 
tail  of  that  beast  or  bird  which  symbolizes 
the  country  of  his  residence.  This  is  not  a 
fancy  sketch,  and  the  existence  of  tihis  ideal 
of  conduct  is  most  unfortunate.  Ambassa- 
dors are  the  friendly  representatives  of  their 
monarchs  or  executives,  resident  in  a  foreign 
state  in  order  to  cultivate  and  maintain 
peaceful  relations  with  it. 

Whatever  interferes  with  their  capacity 
for  this  makes  them  undesirable.  When  a 
man  has  an  unfriendly  feeling  for  another 
country,  he  is  persona  non  grata  to  it ;  he  is, 
moreover,  useless  to  his  own  government. 
If  a  man  be  a  boor  in  manners,  a  meddler 
in  politics,  disagreeable  instead  of  affable  in 
his  personal  relations,  he  cannot  successfully 
carry  out  the  object  of  his  mission.  When, 
as  is  the  case  with  the  United  States,  much 
of  our  diplomacy  is  carried  on  directly  by 
the  Department  of  State,  this  cultivation  of 
international  good  will  becomes  the  chief, 


OF   INTERNATIONAL   CONTROVERSIES      249 

almost  the  sole,  reason  for  the  maintenance 
of  a  resident  at  a  foreign  court. 

And,  finally,  it  is  a  responsible  way.  Here 
is  where  the  duty  of  adjusting  foreign  differ- 
ences belongs.  If  capable  of  solution,  in 
nine  cases  out  of  ten  diplomacy  can  and 
will  and  does  solve  them.  Such  solutions 
stir  up  no  feeling,  create  no  war  scares, 
leave  no  scar  behind.  They  imply  no  inter- 
national contest,  while  even  so  peaceful  and 
satisfactory  a  method  as  arbitration  does 
imply  contest.  It  follows,  therefore,  as  it 
seems  to  me,  that  our  State  Department  and 
our  diplomatic  service  and  methods  should 
be  strengthened  in  every  possible  way.  It 
should  be  a  service,  in  fact,  trained  in  law 
and  language,  based  upon  fitness  and  upon 
promotion  from  within,  guided  by  experience, 
able  to  compare  in  character  with  that  of 
any  other  country.  It  follows,  also,  that 
whatever  tends  to  weaken  the  diplomatic 
method  of  settlement  is  to  be  deprecated. 
Here  lies  a  valid  objection  to  any  permanent 
court  of  arbitration  or  even  to  any  perma- 
nent arbitral  system  which  will  work  without 
diplomatic  adjustment.  For,  the  moment 
such  a  court  or  system  is  created,  the  sense 
of  responsibility  of  the  diplomatic  department 
will  be  lessened.  This  is  inevitable,  for  re- 
sponsibility is  proportioned  to  the  possession 
of  power  and  the  consequences  of  inaction. 


250   SOME  THOUGHTS  ON  THE  SETTLEMENT 

When  any  minor  question  between  states, 
at  the  instance  of  either,  could,  be  sent  to  a 
court  for  settlement,  their  departments  of 
foreign  affairs  would  take  very  little  interest 
in  effecting  an  earlier  adjustment. 

To  strengthen  the  settlement  by  arbitra- 
tion independent  of  diplomacy  would  there- 
fore imply  a  weakening  of  the  settlement  by 
diplomacy.  This  is  not  to  discredit  the 
arbitration  principle ;  it  is  only  putting  it  in 
its  proper  place,  locking  hands  with  the 
diplomatic  principle,  and  not  trying  to  work 
independently  of  it. 

What  is  the  nature  and  what  are  the  rules 
of  international  arbitration!  This  is  our 
next  inquiry.  When  the  diplomatic  repre- 
sentatives of  two  disputant  states  have  failed 
to  reach  an  agreement  from  within,  they 
may  call  in  outside  aid.  The  question  in 
dispute  is  accurately  stated;  the  choice  of 
arbitrators  is  made;  their  time  and  place 
of  meeting,  their  form  of  award,  the  rules 
which  shall  govern  them,  are  arranged  for. 
Read  any  treaty  which  has  created  such  a 
tribunal,  and  you  will  see  how  minutely  it 
attempts  to  provide  for  every  contingency. 
Where  a  detail  is  not  thus  laid  down,  it  is 
governed  by  the  rules  of  the  Roman  law. 
Thus  if  a  unanimous  award  is  not  necessary 
under  the  treaty,  a  majority  award  is  bind- 
ing, because   the  Roman  law  so  provides. 


OF   INTERNATIONAL  CONTROVERSIES       251 

This  very  point  came  up  in  the  Halifax 
fishery  award. 

Certain  defects  will  vitiate  the  decision  of 
a  board  of  arbitration.  If  it  fails  to  pass 
upon  the  exact  questions  submitted;  if  it  is 
unintelligible ;  if  it  is  inii)ossible  of  execution 
or  tainted  with  fraud— in  all  these  cases  the 
award  is  not  binding. 

It  will  be  convenient  here  to  sum  up  the 
arguments  for  arbitration  as  a  means  of  set- 
tling international  disputes,  and  the  objec- 
tions to  it,  as  well. 

It  is  a  peaceful  substitute  for  the  very 
great  evil  of  war.  Taking  a  dispute  out  of 
the  hands  of  interested  parties  who  have 
failed  to  agree,  it  refers  it  to  disinterested 
parties,  so  constituted  that  there  must  be  an 
agreement.  It  has  been  tested,  and  it  works. 
Under  a  definite  agreement  to  arbitrate, 
rumors  of  war  would  cease,  because  the  ex- 
pectation of  arbitration  would  take  their 
place  in  men's  minds.  On  the  other  hand, 
arbitration  leaves  a  sting,  a  sense  of  being 
cheated,  in  the  mind  of  the  loser.  It  cannot 
settle  all  disputes,  for  those  which  involve 
the  honor  or  the  existence  or  the  policy  of 
the  state  are  incapable  of  submission.  This 
is  almost  universally  admitted.  A  good 
illustration  may  be  found  in  the  Venezuelan 
imbroglio.  The  question  of  boundary  be- 
tween  Great   Britain    and  Venezuela   is   a 


252   SOME  THOUGHTS  ON  THE  SETTLEMENT 

question  of  fact;  it  can  be  and  should  be 
arbitrated.  The  question  whether  the  in- 
terests of  the  United  States  are  seriously 
involved  in  an  attempt  by  a  European  power 
to  extend  its  territory  in  this  hemisphere  is 
a  delicate,  almost  intangible,  question  of  pol- 
icy, and  quite  unsusceptible  of  settlement  in 
this  way. 

Again,  it  is  a  surrender  of  the  sovereignty 
of  the  state.  This  is  not  a  serious  thing 
where  the  end  can  be  seen  from  the  begin- 
ning. Where,  however,  a  permanent  system 
is  entered  upon,  and  whole  classes  of  cases 
are  to  be  tried  in  this  way,  it  is  a  serious 
thing.  It  means  that,  unless  a  breach  of 
faith  is  committed,  the  state  has  surrendered 
the  right  of  war,  one  of  the  highest  rights  of 
sovereignty,  even  if  a  matter  comes  up  which 
is  deemed  vital.  Thus  that  first  law  of  na- 
tions, as  of  individuals,  the  right  of  self-de- 
fense, is  lost. 

Comparing  these  considerations  with  one 
another,  I  think  it  is  clear  that  arbitration 
is  an  expedient  of  the  highest  value  for  de- 
ciding certain  questions  between  states,  but 
one  which  must  be  used  judiciously  and 
under  restrictions.  Questions  of  fact,  of 
damages, — speaking  generally,  questions  of 
a  business  nature, — are  suited  to  this  kind 
of  settlement,  and  these  will  largely  outnum- 
ber the  others.    But  just  as  it  has  been  urged 


or  INTEENATIONAL  CONTROVERSIES   253 

that  diplomatic  methods  of  settlement  should 
be  improved  by  improving  the  machinery, 
so  perhaps  can  the  method  by  arbitration  be 
bettered. 

This  brings  us  to  tlie  consideration  of  its 
scope  and  its  details.  These  are  the  ques- 
tions which  fill  men's  minds  to-day.  When 
we  speak  of  arbitration  as  it  now  exists,  we 
mean  the  ai^plication  of  that  principle  to  a 
single  definite  point,  the  decision  to  be  made 
by  a  judge  or  body  of  judges  appointed  for 
the  purpose.  But  when  we  dream  of  the 
arbitration  of  the  future,  we  picture  to  our- 
selves a  i^ermanent  court  of  unblemished 
character  and  the  highest  dignity,  which 
shall  be  always  ready  to  pass  upon  all  ques- 
tions submitted,  and  to  which  most  questions 
shall  be  submitted. 

I  do  not  say  that  this  is  only  a  dream,  but 
perhaps  we  do  not  realize  the  tremendous 
step  from  the  one  method  to  the  other,  and 
the  very  serious  difficulties  in  the  way.  The 
believers  in  the  new  system  generally  make 
up  their  court  out  of  an  equal  number  of 
the  highest  judges  of  the  nations  engaging. 
Some  believe  that  no  further  provision  need 
be  made  for  a  tie  vote;  others  would  dis- 
solve a  tie  by  giving  two  votes  to  some  one, 
perhaps  to  a  judge  of  each  nation  alternately. 
But  the  plan  depends  upon  a  belief  that  na- 
tionality would  be  sunk,  and  that  partizan- 


254   SOME  THOUGHTH  ON  THE  SETTLEMENT 

ship  would  be  triuinj^lied  over  by  the  judi- 
cial instinct.  A  justice  of  the  Supreme 
Court  of  the  United  States  has  testified  to 
this  belief.  I  do  not  believe  that  he  knows 
the  secrets  of  his  own  heart.  When  the 
Tilden  election  commission  w^as  chosen,  cer- 
tain of  its  members  w^ere  drawn  from  the 
Supreme  Court.  Every  member,  every 
judge,  voted  according  to  his  political  bias. 
In  the  various  causes  celehrcs  of  arbitration, 
in  all  vital  points,  the  judges  drawn  from 
the  nations  involved  have  voted  for  their 
own  cause  and  have  been  its  most  efficient 
pleaders.  Many  a  question  between  Great 
Britain  and  this  country  has  been  referred 
to  a  joint  commission,  but  that  commission 
has  rarely  failed  to  divide,  in  matters  of 
law  and  matters  of  fact,  upon  the  lines  of 
nationality.  The  idea  of  foreign  judges 
does  not  seem  to  appeal  to  the  advocates  of 
this  permanent  court,  but  I  believe  such  a 
make-up  to  be  preferable. 

And  yet  here,  too,  we  find  difficulties. 
We  can  perhaps  answer  for  their  impar- 
tiality at  the  outset,  but  who  can  guarantee 
the  permanence  of  this  quality,  or,  of  the 
friendship  of  their  native  states'?  A  fre- 
({uent  result  of  arbitration  is  the  belief  that 
a  certain  member  of  the  court  has  been 
unfair.  In  a  special  case,  where  the  court 
has  been  immediately  dissolved,  this  is  bad 


OF   INTERNATIONAL   CONTliOYEESIES       255 

enough.  But  with  a  permanent  court, 
wliere  the  dislike  or  distrust  of  the  man 
might  destroy  confidence  in  all  his  subse- 
quent decisions,  it  would  be  infinitely  worse. 

Besides  such  difficulties  as  these  in  the 
make-up  of  the  court,  there  are  other  and 
weightier  ones. 

It  must  administer  international  law,  with 
its  many  uncertainties,  a  law  which  has 
never  been  codified,  and  cannot  be,  in  the 
present  state  of  opinion,  so  diverse  are  the 
interpretations  of  the  jurists  and  the  politi- 
cal interests  of  different  states.  It  is  easy  to 
say  in  reply  that  such  a  court  would  quickly 
frame  its  own  code  by  interpretation  and 
decision.  It  might  attempt  this,  if  the  los- 
ing state  permitted.  But  would  not  the 
novelty  of  a  rule  or  its  interpretation  be  a 
valid  ground  of  appeal  from  the  decision? 
The  building  up  of  a  code  would  hardly  be 
a  consolation  to  the  defeated  litigant.  Yet 
his  condition  of  mind  and  will  must  never 
be  lost  sight  of.  For  it  must  not  be  forgot- 
ten that  the  sanction  of  the  court  is  to  be 
found  in  the  popular  backing  and  approval 
of  its  actions.  When  its  decisions  have  to 
be  enforced  by  war,  it  is  a  failure.  When 
its  decisions  do  not  command  the  confidence 
of  both  disputants,  its  usefulness  is  gone. 
We  have  not  yet  reached  a  golden  age  where 
love  is  law,  where  suspicion  and  selfishness 


256   SOME  THOUGHTS  ON  THE  SETTLEMENT 

have  fled  away.  This  is  by  no  means  the 
whole  ease  against  a  permanent  court  of 
arbitration.  I  am  merely  trying,  somewhat 
disjointedly,  to  point  out  what  a  very  violent 
change  from  the  present  usage  it  involves, 
and  what  serious  objections  there  are  to  it. 
But  let  us  recur  to  a  question  already  put, 
and  ask  whether  the  principle  of  arbitration 
cannot  be  enlarged,  but  in  some  other  way, 
and  without  so  largely  dispensing  as  a  per- 
manent court  would  do  with  the  diplomatic 
method.  Cannot  a  permanent  system  of 
arbitration  be  devised,  instead  of  a  perma- 
nent court,  which  shall  make  constant  use 
of  diplomacy  and  avoid  the  difficulties  de- 
scribed? In  my  opinion  this  is  the  true 
course  to  pursue.  We  have  a  system,  or  at 
least  a  usage,  at  present,  which  will  work, 
which  has  rarely  failed  of  success  when  tried, 
and  which  is,  in  truth,  the  basis  for  the  cur- 
rent demand  for  something  wider  and  better. 
Broaden  and  perfect  the  present  usage,  then, 
and  retain  in  it  the  resources  of  diplomacy, 
rather  than  throw  it  aw^ay  and  jeopardize 
the  arbitration  principle  by  adopting  a  new 
and  untried  scheme.  The  time  seems  ripe 
for  such  an  experiment  as  this.  Let  Great 
Britain  and  the  United  States  define  by 
treaty  those  classes  of  cases  which  they 
can  safely  submit  to  arbitration.  As  being 
only  an  experiment,  the  treaty  arrangement 


OF    INTEllNATIONAL   CONTKOVERSIES       257 

should  be  made  for  a  limited  time,  say  ten 
years,  with  extension  thereafter  in  case 
neither  state  wishes  to  terminate  it.  When- 
ever a  question  under  the  treaty  arises,  pro- 
vide that  a  certain  interval  shall  elapse 
before  further  action  is  taken.  If  an  agree- 
ment has  not  been  reached  within  this  time, 
bind  the  state  departments  of  the  two  coun- 
tries to  refer  the  matter  to  a  special  board  of 
arbitration,  whose  make-up  and  compensa- 
tion, the  conditions  of  its  award,  and  the 
law  applicable  to  that  award,  if  need  be,  in 
case  other  than  questions  of  fact  are  to  be 
passed  upon,  shall  be  laid  down  through  the 
channels  of  diplomacy. 

Such  a  system  as  this  preserves  the  volun- 
tary element  which  is  the  distinctive  mark 
of  arbitration.  By  it  the  board  can  be 
adapted  in  its  character  to  the  nature  of 
the  question  submitted.  By  it,  too,  the  im- 
partiality of  the  judges  can  be  always  more 
nearly  preserved.  We  retain  the  possibility 
of  settlement  through  diplomacy,  but  upon 
failure  of  this  method  within  a  reasonable 
time  there  succeeds  the  certainty  of  a  trial 
by  arbitration  to  check  the  outburst  of  popu- 
lar passion  and  threatenings  of  war.  So, 
too,  we  can  test  the  wider  development  of 
arbitration,  yet  without  undue  danger  of  its 
breakdown.  We  can  try  in  a  single  case  a 
board  made  up  of  the  judges  of  the  highest 

17 


258  INTERNATIONAL   CONTROVERSIES 

courts  and  determino  its  likelihood  of  impar- 
tiality, remembering,  however,  that  such 
judges  have  but  a  mortal  capacity  for  toil, 
and  that  their  time  is  already  fully  occupied. 
Such  a  plan  I  believe  to  have  the  possi- 
l)ility  of  success ;  a  permanent  court  I  believe 
would  be  doomed  to  failure.  But  let  us 
never  forget  our  sense  of  pi'oportion.  Put 
the  power  and  the  duty  to  settle  internation- 
al disputes  where  they  belong,  in  the  hands 
of  the  diplomatists,  and  strengthen  those 
hands.  Upon  their  failure  try  arbitration, 
and  broaden,  fortify,  popularize  arbitration. 
For  those  questions  which  involve  the  honor, 
the  policy,  the  very  existence  of  the  state, 
reserve  that  supreme  exercise  of  its  sover- 
eignty, the  right  of  war.  War  is  a  tremen- 
dous waste,  a  crime  against  humanity,  a 
great  evil,  but  not  the  greatest  of  evils. 


SOME   COMMENT  UPON  THE 
ARBITRATION  TREATY 

The  Forum, 
March,  1897 


SOME  COMMENT  UPON  THE 
ARBITRATION  TREATY 

REDUCED  to  its  simplest  terms,  the  ar- 
'  bitration  treaty  which  has  been  signed 
by  representatives  of  Great  Britain  and  the 
United  States  provides  as  follows : 

There  shall  be  created  three  tribunals.  To 
one  or  more  of  these  tribunals  three  classes 
of  questions  shall  be  referred. 

The  make-up  of  the  tribunals,  their  juris- 
diction, and  the  classes  of  questions  to  be 
submitted,  may  be  seen  in  the  table  on  the 
next  page. 

The  objections  commonly  urged  against 
any  general  arbitration  agreement  between 
states  are  of  three  sorts:  (1)  Those  based 
upon  the  weakening  in  efficiency  of  the 
diplomatic  methods  of  settlement ;  (2)  those 
springing  from  the  impossibility  of  submit- 
ting all  questions  to  arbitral  settlement ;  (3) 
those  inherent  in  the  make-up  and  working 
of  the  tribunal  as  ordinarily  devised. 

Let  us  examine  these  objections,  and  see 

2G1 


262 


SOME    COMMENT 


how  the  treaty  laid  before  the  Senate  for 
consideration  succeeds  in  meeting  them. 

Diplomacy  is  the  natural,  friendly,  effec- 
tive, and  quiet  method  of  settling  interna- 
tional disputes.  Whatever  tends  to  weaken 
its  efficiency  is  to  be  deplored.  The  pre- 
sumption should  always  ])e  that  a  difference 
will  be  arranged   by  diplomacy,  not  sub- 


TRIBUNAL  A. 

TRIBUNAL  B. 

TRIBUNAL  C. 

QUESTIONS  TO 
BE  SUBMITTED. 

Tliree  members: 
one     chosen     by 
each   state,    with 
provision    for 
choice  of  third. 

Five  members: 
two     named     by 
each   state,    with 
provision  for 
choice  of  fifth. 

Six  members : 
three  higher 
judges  from  each 
state.  No  provi- 
sion for  breaking 
a  tie. 

I. 

Pecuniary 
claims     under 
£100,000    in 
value. 

Original  and 
final  jurisdiction, 
award  by  majority 
vote. 

n. 
Pecuniary 
claims     over 
£100,000    in 
value.        Also 
claims  growing 
out    of    rights 
"under  treaty 
or  otherwise," 
but  not    terri- 
torial. 

Original     juris- 
diction, which  is 
also    final    if    by 
unanimous  vote. 

Jurisdiction  up- 
on   appeal,    if    A 
does    not   render 
unanimous  award. 
Majori  ty  vote 
final. 

III. 
Territorial 
claims  such  as 
relate  to  servi- 
tudes,   naviga- 
tion,      access, 
fisheries,  boun- 
daries, etc. 

Original  juris- 
diction. Award 
final  if  by  vote  of 
five  to  one,  or  if 
by  majority  vote, 
and  no  appeal  is 
made  witliin  three 
months.  If  pro- 
tested, mediation 
to  be  tried  before 
hostilities. 

UPON   THE    AllBITlUTION   TREATY  2G3 

mitted  straightway  to  aii)itration.  Imagine 
the  standing  of  a  business  house  which  made 
a  practice  of  collecting  its  bills  by  legal  pro- 
cess before  their  friendly  presentation  and 
adjustment  through  correspondence  !  Arbi- 
tration is  sought  after  as  a  substitute  for 
war,  not  as  a  suljstitutc  for  diplomacy.  It 
has  been  feared  that  the  existence  of  a  tribu- 
nal ready  to  settle  international  differences 
would  greatly  lessen  the  potency  of  the 
diplomatic  method.  Diplomatists  would 
feel  less  responsibility  for,  and  take  less 
interest  in,  a  matter  which,  in  all  likelihood, 
was  soon  to  be  transferred  to  other  hands  for 
settlement. 

Thus  the  amount  of  international  litiga- 
tion would  largely  increase.  Thus  the  etfi- 
ciency  of  processes  which  now  arrange  nine 
tenths  of  the  differences  between  states, 
without  causing  a  ripple  of  excitement, 
would  be  seriously  weakened.  Arbitration, 
like  all  other  litigation,  arouses  hard  feeling. 
It  is  infinitely  better  than  war;  but  it  is 
much  inferior  to  diplomacy,  because  less 
flexible  and  with  no  capability  for  com- 
promise or  adjustment. 

In  some  measure  the  arbitration  treaty 
recognizes  this,  though  not  so  fully  as  could 
be  wished.  In  its  first  article,  the  contract- 
ing parties  agree  to  submit  to  arbitration 
"all  questions  in  difference  between  them 


264  SOME    COMMENT 

which  they  may  fail  to  adjust  by  diplomatic 
negotiatiou."  Here  the  presumj^tion  is  ex- 
pressed that  diplomacy  will  have  been  tried. 
That  is  right  and  wise.  But  tliere  is  an  under- 
lying presumption  that  diplomacy  will  fail. 
That  is  a  fault  inherent  in  the  arbitration  prin- 
ciple. Possibly  it  might  be  minimized  by  ex- 
cluding the  first  class  of  differences,  the  minor 
claims,  which  neither  country  would  fight 
over  in  any  case.  Or  where  individual,  rather 
than  national,  claims  are  being  pressed,  the 
cost  of  arbitration  could  be  deducted  from  the 
amount  recovered.  Or  a  certain  delay  might 
be  compulsory,  before  recourse  was  had  to  a 
treaty  tribunal,  during  which  the  state  de- 
partments must  try  to  effect  a  settlement. 
Perhaps  in  some  such  way  as  this  the  too 
free  use  of  the  international  tribunal  could 
be  checked,  and  the  methods  now  effectively 
employed  could  be  preserved. 

It  has  often  been  urged  that  no  nation  can 
afford  to  tie  its  hands  in  advance  by  sub- 
mitting to  arbitration  all  possible  questions, 
including  those  wdiich  involve  its  national 
policy,  its  national  honor,  its  national  life. 
To  do  so  would  be  a  surrender  of  national 
sovereignty  in  its  highest  expression,  a 
waiver  of  that  right  of  self-defense  which  is 
the  first  law  of  nations.  This  is  fully  recog- 
nized by  the  treaty.  It  specifies  the  classes 
of  questions  which  shall  be  submitted.   These 


UPON    THE   ARBITRATION   TREATY         265 

are :  pecnniaiy  claims ;  differences  involving 
rights  under  treaty  or  international  law; 
territorial  claims.  By  inference,  all  other 
questions  are  held  to  be  incapable  of  sub- 
mission, those  involving  national  policy 
among  them.  So  that  we  may  direct  the 
search-light  of  the  Monroe  Doctrine  at  will 
upon  this  continent ;  we  ma.v  declare  British 
aggression  upon  Patagonia  dangerous  to  our 
safety  and  free  institutions,  without  the  risk 
of  being  brought  to  book  before  a  court  of 
arbitration. 

On  the  other  hand,  the  treaty  does  re- 
quire the  submission  of  just  those  differ- 
ences the  like  of  which  the  two  nations  have 
already  so  often  arbitrated.  Fishery  dis- 
putes, as  at  Halifax;  pecuniary  claims,  as 
at  Geneva;  boundaries,  as  in  the  San  Juan 
case — all  such  must  be  referred  to  the  new 
tribunal,  if  not  otherwise  settled,  and  very 
properly.  They  are  questions  of  law,  or 
fact,  or  treaty  interpretation,  usually  capa- 
ble of  this  kind  of  settlement.  A  few  cases 
perhaps  remain  where  national  policy  and 
treaty  obligations  are  so  intermingled  that 
they  ought  not  to  be,  as  they  seem  to  be, 
included  among  the  differences  to  be  finally 
decided  by  Tribunal  B.  For  example,  under 
the  Clayton-Bulwer  treaty,  the  United  States 
binds  itself  to  abstain  from  exclusive  control 
over  an  isthmian  canal  in  Central  America; 


2GG  SOME   COMMENT 

nevertheless  tlie  prevalent  national  belief  is 
that  such  exclusive  control  is  our  prerogative 
and  our  policy.  Here  a  question  of  policy, 
under  the  guise  of  a  right  under  treaty,  might 
be  referred  for  final  decision.  For  myself, 
I  am  strongly  inclined  to  the  opinion  that 
the  proper  status  of  any  canal  across  Cen- 
tral America  will  be  found  to  be  its  neutrali- 
zation guaranteed  by  the  commercial  powers. 
But  its  disposition  is  certainly  a  question  of 
policy  open  to  argument ;  and  very  likely  the 
Senate  may  withdraw  this  particular  case 
from  the  operation  of  the  treaty. 

Turn  now  to  the  third  class  of  objections 
to  any  permanent  arbitration  agreement— 
those  relating  to  the  framing  and  working 
of  its  machinery.  It  is  here  that  the  treaty 
deserves  most  praise  and  confidence.  It  is 
an  ingenious,  and  should  prove  a  successful, 
attempt  to  substitute  the  judgment  of  a 
court  for  the  self-pronounced  judgment  of  a 
people.  It  does  this,  not  by  promising  an 
award,  but  by  furnishing  a  trial.  All  pe- 
cuniary claims  are,  it  is  true,  to  be  finally 
disposed  of  by  it.  The  same  is  true  of  dif- 
ferences growing  out  of  rights  whether  under 
treaty  or  the  general  law  of  nations.  But 
a  majority  of  the  serious  cases  which  may 
arise,  which  are  called  territorial  claims  by 
the  treaty,  and  include  questions  of  access, 
navigation,  fisheries,   boundaries, — in   fact, 


UPON    THE   ARBITRATION   TREATY  267 

most  of  those  rights  for  which  a  nation 
would  go  to  war,— must  go  to  trial,  ])ut 
with  no  certainty  of  a  final  judgment. 

Through  this  failure  to  insure  a  binding 
verdict,  i^aradoxically  enough,  the  treaty  is 
strong  where  it  seems  to  be  weak.  It  is 
safe,  because  it  does  not  attempt  too  much. 
It  bids  fair  to  be  effective,  because  it  does 
not  promise  efficiency.  It  is  a  hopeful 
attempt  at  arbitration,  although,  technically 
speaking,  not  arbitration  at  all;  for  the  very 
essence  of  arbitration  lies  in  the  finality  of 
its  award,  ^^^lat  it  offers  is  a  refuge  from 
popular  excitement— the  chance  of  a  settle- 
ment, the  certainty  of  a  breathing-spell. 
What  it  does  not  offer  is  a  binding  award  on 
all  the  questions  between  its  members,  to  fit 
like  a  strait- jacket  upon  the  body  politic  and 
tempt  it  irresistibly  sometimes  to  break  the 
bonds.  Notice  the  procedure  in  the  third 
class  of  cases.  If  the  award  is  unanimous 
or  made  by  a  vote  of  five  to  one,  it  is  final. 
But  if  made  by  any  less  majority  it  may  be 
protested,  and  is  "  of  no  validity."  The  next 
step  is  a  recourse  to  mediation,  which  is  the 
offer  of  good  advice,  with  no  obligation  to 
take  it.  Then  diplomacy  may  try  its  hand 
again.  Finally,  the  question  may  be  put  to 
the  arbitrament  of  war. 

In  this  chain  of  processes  a  final  award  is 
reached,  if  the  matter  in  dispute  is  clear  to 


268  SOME   COMMENT 

an  overwhelniing  majority  of  the  tribunal. 
But  the  certainty  remains  that  if  the  question 
has  elements  of  doubt  in  it,  two  out  of  the 
three  judges  who  comprise  each  half  of  the 
court  can  and  will  prevent  a  verdict.  For 
in  matters  essential  yet  uncertain  they  will 
retain  their  national  bias  and  point  of  view. 
Nationality  and  human  nature  are  stronger 
than  the  judicial  temperament.  It  has 
always  been  so ;  it  is  even  desirable  that  it 
should  be  so.  We  may  safely  conclude  that 
the  framers  of  the  treaty  relied  upon  this 
fact  in  inserting  this  provision,  and  did  so 
to  prevent  the  infinite  risk  of  a  Ijreakdown 
of  machinery,  in  case  a  beaten  litigant  re- 
fused to  accept  the  award.  They  rested 
upon  the  presumption  of  peace  which  it 
contains,  not  upon  the  strength  and  com- 
pleteness of  its  procedure. 

Criticism  there  may  be  of  this  and  that 
detail.  No  code  of  international  law  exists 
to  guide  the  tribunals.  The  judges  who  are 
to  form  Tribunal  C  are  already  overbur- 
dened. The  method  of  naming  the  umpires 
may  prove  clumsy  or  bad.  Still,  such  ob- 
jections as  these  are  overshadowed  and  out- 
balanced by  the  strong  probability  that  the 
plan  would  work.  It  would  prevent  war 
scares,  because  the  popular  mind,  always 
ready  to  take  fright  or  to  take  fire,  would 
be  conscious  of  various   and  lengthy  pro- 


UPON   THE   AKBITRATION   TllEATY  269 

cesses  which  must  precede  war;  and  the 
]^opnlar  interest  soon  tires.  It  would  tend 
to  prevent  war,  because  it  insures  a  trial  of 
most  differences,  gathers  light  upon  them 
from  several  quarters,  prevents  action  in 
hot  l^lood,  and  presupposes  peace.  Being 
an  experiment,  to  last  for  five  years  only 
unless  proved  satisfactory,  it  is  a  working 
basis  upon  which  to  build.  It  does  not  im- 
peril the  arbitration  principle  by  attempting 
too  much.  It  is  a  step — a  considerable  step 
—toward  a  better  order  of  things. 

When  mountain-climbers  reach  ice  they 
put  on  the  rope,  and,  cutting  step  after  step, 
slowly  and  carefully  mount  to  their  goal; 
they  do  not  risk  all  by  a  hasty  scramble  up 
the  incline. 

Here  are  two  nations,  in  speech,  in  laws, 
in  blood,  in  institutions,  in  ideals,  akin. 
Together  they  climb  the  slippery  slopes  of 
the  Mount  of  Lasting  Peace  and  Brother- 
hood. With  this  treaty  they  rope  them- 
selves together.  The  step-cutting  has  be- 
gun. The  ascent  is  slow ;  but  if  it  be  made 
sure,  who  can  venture  to  set  a  limit  to  their 
upward  progress  ? 


THE   UNITED   STATES   AND   THE 
DECLAEATION  OF  PARIS 


Yale  Law  Journal, 
February,  1894 


THE   UNITED   STATES   AND   THE 
DECLARATION  OF   PAEIS 

THERE  is  a  possibility  that  the  acces- 
sion of  the  United  States  to  the  decla- 
ration of  Paris  is  shortly  to  be  urged  upon 
the  Secretary  of  State.  In  such  event  the 
reasons  favoring  this  action  may  well  be 
worthy  of  our  study.  The  articles  of  this 
important  international  compact,  made  in 
1856,  at  the  close  of  the  Crimean  War,  were 
as  follows: 

"  1.  Privateering  is  and  remains  abolished. 

2,  The  neutral  flag  covers  enemy's  goods, 
with  the  exception  of  contraband  of  war. 

3.  Neutral  goods,  with  the  exception  of  con- 
traband of  war,  are  not  liable  to  capture 
under  enemy's  flag.  4.  Blockades  in  order 
to  be  binding  must  be  effective,  that  is  to 
say,  maintained  by  a  force  suflicient  really 
to  prevent  access  to  the  coast  of  the  en- 
emy." 

This  declaration  was  to  be  binding  only 
as  between  the  parties  to  it.     Spain,  Mexico, 

18  273 


274:  THE   UNITED    STATES 

and  the  United  States  are  the  only  commer- 
cial states  of  importance  which  have  thus 
far  failed  to  give  in  their  adhesion,  the  two 
former  being  restrained  by  the  refusal  of  the 
latter.  The  action  of  the  United  States  was 
thus  exj)lained :  The  policy  of  this  country 
was  against  the  maintenance  of  a  large  navy. 
To  supplement  that  navy  in  the  work  of 
commerce-destroying  and  of  enforcing  the 
rules  of  naval  war  against  neutral  trade,  the 
issue  of  letters  of  marque  might  be  neces- 
sary ;  so  that  unless  the  declaration  were  so 
amended  as  to  exempt  all  innocent  private 
property,  neutral  or  hostile,  from  capture, 
the  accession  of  the  United  States  was  de- 
clared impolitic.  This  "  Marcy  amendment " 
was  not  carried,  owing  to  the  influence  of 
Great  Britain. 

The  question  of  accession  again  came  up 
during  the  first  year  of  the  War  of  the  Re- 
bellion. Dropping  this  Marcy  idea,  Mr. 
Seward  was  willing  to  accede  uncondition- 
ally. The  obstacle  came  from  France  and 
particularly  from  Great  Britain.  For  Mr. 
Seward  was  warned  that  the  accession  of  his 
country  could  have  no  retroactive  effect  to 
"invalidate  anything  already  done,"  could 
not  be  held,  that  is,  to  apply  to  the  hostili- 
ties already  broken  out  between  North  and 
South;  with  this  limitation  understood  it 
would  be  accepted.     Mr.  Henry  Adams,  in 


AND   THE   DECLAIUTION   OF   PARIS         275 

an  interesting  essay/  enlarges  upon  the 
duplicity  of  Lord  Russell  in  considering  and 
replying  to  this  offer.  But  to  my  mind,  for  its 
failure,  Mr.  Seward  was  not  wholly  blameless. 
For,  as  always  in  the  early  years  of  the  war,  he 
was  proceeding  on  the  assumption  that  the 
United  States  could  not,  and  that  foreign 
powers  must  not,  recognize  the  belligerency 
of  the  South.  ISFow,  in  point  of  fact,  the 
government  of  the  North  had  itself  recog- 
nized Southern  belligerency,  by  refusing  to 
punish  the  crews  of  Southern  men-of-war 
as  pirates  in  spite  of  the  decision  of  the 
court  (Prize  Causes,  2  Black,  635),  and  by 
establishing  a  blockade  of  Southern  ports, 
which  is  a  war  measure.  Holland,  France,  and 
Spain,  as  well  as  Great  Britain,  had  already 
made  formal  recognition  of  the  belligerency 
of  the  Confederate  States.  President  Davis 
had  been  asked  to  bind  his  country  to  ob- 
serve the  rules  of  the  declaration,  and  had 
declined. 

Under  these  circumstances,  why  was  it  not 
reasonable  to  impose  as  a  condition,  upon  a 
convention  of  accession,  the  proviso  that  the 
said  accession  should  be  prospective  merely 
and  should  not  be  held  applicable  to  the 
struggle  at  hand !  But  such  a  proviso  con- 
flicted with  that  false  and  hampering  theory 
that  the  North  was  not  at  war  with  a  bellig- 

1  "Historical  Essays,"  by  Henry  Adams  (Scribner,  1891). 


276  THE    UNITED    STATES 

erent  power,  and  the  offer  of  accession  was 
withdrawn.  This  was  more  than  thirty  years 
ago.  Now,  however,  in  a  time  of  peace,  with 
no  ulterior  motives  possible,  the  question  of 
accession  is  likely  to  be  again  brought  for- 
ward, and  can  be  argued  on  general  grounds. 
The  object  of  the  present  paper  is  to  make 
very  briefly  a  plea  for  such  action. 

As  the  article  relating  to  paper  blockades 
has  been  formally  advocated  by  this  country, 
it  may  be  left  out  of  consideration.  The 
three  other  provisions  of  the  declaration  may 
be  arranged  in  a  balance-sheet,  somewhat  as 
follows : 

The  United  States 

in  account  with 

The  Signatories  of  the  Declaration  of  Paris. 

Dr.  Cr. 


For  adoption  of  rules  that 

(1)  Free  ships  make  free  goods. 

(2)  Enemy  sliips  do  not  infect 
the  neutral  goods  on  board. 

E.  &  O.  E. 


For  renunciation  of  the  right  to 
commission  privateers. 


The  following  propositions  are  laid  down 
without  argument  as  our  premises : 

1.  The  interests  of  the  United  States  are, 
on  the  whole,  on  the  side  of  neutral  rather 
than  of  belligerent  rights. 

2.  The  two  rules  on  the  debtor  side  of  the 
balance  are  already  adopted  by  the  policy  of 
the  United  States. 

3.  If  the  United  States  should  engage  in 
war,  the  chances  are  largely  that  such  war 


AND  THE  DECLARATION  OF  PAKIS    277 

would  be  with  a  power  weaker  than  itself  in 
its  war  navy  and  naval  resources. 

The  history  of  the  American  carrying- 
trade  during  the  Napoleonic  wars  is  a  strik- 
ing illustration  of  the  value  of  neutral  privi- 
leges. Although  our  ships  had  no  right  to 
shelter  enemy  goods  under  their  neutral  flag ; 
although  the  doctrine  of  occasional  contra- 
band enforced  by  Great  Britain,  sometimes 
softened  into  preemption,  greatly  interfered 
with  our  chief  article  of  export,  provisions ; 
although  the  restrictive  decrees  of  each  bel- 
ligerent, culminating  in  the  utterly  unjust 
and  unlawful  paper  blockades  declared  by 
both,  at  times  threw  our  trade  into  con- 
fusion, nevertheless  American  tonnage  in- 
creased thirty,  sixty,  even  one  hundred, 
thousand  tons  per  year. 

If  the  economists  are  correct,  we  are  prob- 
ably now  approaching  a  time  when  our 
vanished  foreign  carrying-trade  will  revive. 
Cheaper  production  will  enable  our  manu- 
facturers to  exchange  commodities  with 
foreign  countries  more  freely.  Cheaper 
ships,  operating  under  less  repressive  ship- 
ping and  port  regulations,  will  reach  out  for 
their  share  of  our  own  increased  commerce 
and  of  the  commerce  of  the  world.  What 
does  such  trade  need  in  view  of  the  chances 
of  war  between  our  friends  ?  It  needs,  first, 
fixed   and   stable   conditions;    second,   the 


278  THE    UNITED    STATES 

greatest  freedom  possible,  the  least  possible 
iuterfereuce  from  the  exercise  of  belligerent 
rights.  Now,  very  little  argument  is  required 
to  show  that  in  these  respects  the  neutral 
shipper  is  better  off  under  the  declaration 
than  the  neutral  shipper  without  it.  Sup- 
pose war  between  Grreat  Britain  and  France. 
Dutch  or  Danish  ships,  under  the  declara- 
tion, could  carry  safely  French  goods  not 
contraband  nor  bound  to  a  blockaded  port, 
while  on  a  United  States  ship  those  same 
goods,  being  unprotected  by  the  declaration, 
would  be  liable  to  capture.  Under  such 
circumstances  French  goods  would  seek 
other  flags  than  ours.  And,  again,  since 
France  until  the  declaration  condemned 
neutral  goods  sailing  under  an  enemy's  flag, 
and  since  the  declaration  binds  its  signato- 
ries only  as  relates  to  one  another,  every  ton 
of  American  wheat,  every  bale  of  American 
cotton,  borne  on  an  English  ship  would  be 
subject  to  capture  by  French  cruisers.  This 
state  of  things  would  be  similarly  true  in 
the  event  of  any  war  between  our  friends 
unless  a  prior  treaty  with  them  forbade. 
We  have  treaties  which  lay  down  the  prin- 
ciple of  "  free  ships,  free  goods,"  with  Spain, 
Russia,  Prussia,  Italy,  and  Sweden  alone  of 
important  commercial  powers.  Probably 
France  alone  would  claim  the  right  to  con- 
demn our  goods  for  seeking  carriage  on  her 


AND   THE   DECLARATION   OF   PAllIS         279 

enemy's  ships.  Uucler  the  principles  stated 
it  is  clear  that  our  neutral  ships  could  not 
compete  on  even  terms  with  other  neutral 
ships  for  the  carrying-trade.  And  if  France 
were  a  belligerent  our  goods  might  be  sub- 
ject to  great  inconvenience  and  even  danger. 
The  rights  of  the  declaration,  then,  are  of 
vital  importance. 

Turn  now  to  the  credit  side  of  the  account, 
and  estimate  what  we  should  be  obliged  to 
surrender  as  the  equivalent  for  these  bene- 
fits, the  right  to  commission  privateers.  It 
is  the  clinging  to  this  right  which  has 
hitherto   stood   in   our  way. 

It  is  not  a  little  curious  that,  while  insist- 
ing upon  the  right  to  issue  letters  of  marque 
to  subjects  of  other  countries,  the  United 
States  forbids  its  own  subjects,  by  statutes 
of  1797  and  1816,  to  take  part  in  the  equip- 
ment or  manning  of  privateers  to  act  against 
nations  with  which  it  is  at  peace.  While 
retaining  this  demoralizing  form  of  warfare, 
it  denies  to  its  citizens  the  right  to  share 
in  its  profits  when  other  nations  employ  it. 
From  this  fact  may  fairly  be  drawn  the 
inference  that  privateering  is  a  trade  of 
which  this  country  in  the  abstract  disap- 
proves. More  than  this,  the  United  States 
has  negotiated  eleven  treaties  which  recipro- 
cally contain  the  same  prohibition. 

The  value  of  privateering  is  still  fm^ther 


280  THE   UNITED    STATES 

narrowed  when  we  consider  what  it  accom- 
plishes. As  the  distinction  in  build  and 
equipment  and  armament  between  men-of- 
war  and  other  ships  grows  more  marked, 
the  privateer  grows  less  important  in  waging 
war.  War  in  the  sense  of  an  exercise  of 
force  upon  armed  ships  is  not  really  the 
object  of  privateering.  Its  reason  for  being 
lies  in  its  -capacity  for  attacking  an  enemy's 
commerce,  which,  while  primarily  enriching 
the  privateersman,  incidentally  benefits  the 
state  commissioning  him.  He  may  also, 
though  less  readily,  be  useful  in  enforcing 
the  laws  relating  to  the  carrying  of  contra- 
band and  to  blockade.  But,  to-day,  war 
navies  are  themselves  built  for  a  twofold 
purpose— the  heavy  armored  ships  for  fight- 
ing, the  fast  protected  or  unarmored  cruisers 
with  large  coal-capacity  for  preying  upon 
commerce  and  enforcing  belligerent  rights 
against  the  neutral.  The  rise  of  ships  of 
this  latter  class,  virtually  doing  a  privateer's 
work,  detracts  from  the  necessity  for  his 
existence.  His  importance  is  lessened  by 
still  another  consideration.  The  value  of 
privateering  should  be  estimated  not  only 
absolutely  but  relatively.  It  helps  the 
weaker  naval  power  relatively  more  than 
the  stronger.  Its  abolition  was  the  reason, 
for  instance,  which  induced  Great  Britain, 
the  strongest  of  all  naval  powers,  to  consent 


AND   THE   DECLARATION   OF   PARIS         281 

to  allow  the  neutral  to  carry  her  enemy's 
goods  free  under  his  flag.  This  surrender 
of  a  right  consistently  exercised  by  Great 
Britain  since  the  time  of  the  Consolato  del 
Mare  was  a  very  great  concession. 

Granting  the  premise  that  the  United 
States  is  more  likely  to  be  at  war  with  a 
power  weaker  in  naval  resources  than  itself, 
than  with  one  stronger,  it  follows  that  priva- 
teering, considered  apart  from  any  equivalent 
gained  in  return  for  its  abolition,  would  be 
more  valuable  to  other  countries  than  to  us. 
The  safety  of  our  own  commerce  is  more 
important  than  the  destruction  of  the  com- 
merce of  such  an  enemy. 

If  these  arguments  are  sound,  the  United 
States  is  in  this  position :  A  very  valuable 
privilege,  involving  a  freedom  of  neutral 
trade  which  would  put  it  on  the  same  foot- 
ing with  the  most  favored  nations,  is  offered 
it  in  exchange  for  the  abolition  of  priva- 
teering. 

It  disapproves  of  privateering  in  the  ab- 
stract. It  forbids  its  citizens  to  engage  in  it 
when  neutral.  It  has  not  itself  employed 
privateers  for  two  thirds  of  a  century.  It 
has  ships  which  can  do  a  privateer's  work 
better  than  a  privateersman,  and  with  fewer 
evil  results.  Privateering  would,  by  the 
doctrine  of  chances,  help  our  enemies  more 
than   ourselves.     In  itself  considered,  the 


282  THE   DECLAEATION   OF  PAEIS 

retention  of  the  right  to  commission  priva- 
teers is  not  valuable  to  the  United  States. 
When  the  equivalent  gained  by  its  abolition 
is  kept  in  view,  the  argument  for  accession 
to  the  declaration  of  Paris  is  overwhelming. 
The  freedom  from  capture  of  all  innocent 
private  property  at  sea,  even  an  enemy's,  is 
the  next  step  in  the  neutral  program.  Our 
accession  to  the  declaration  should  help  to- 
ward this.  Our  accession  should  be  coupled 
with  that  of  Spain  and  Mexico.  A  foreign 
war  affecting  American  commerce  may  break 
out  at  any  time  and  with  scant  warning.  If 
our  accession  to  the  declaration  is  a  proper 
step,  it  should  be  taken  noiv, 

[Note.— The  fact  that  neither  Spain  nor 
the  United  States  in  the  war  now  in  progress 
has  seen  fit  to  employ  privateers,  that  both 
have  conformed  in  their  usage  to  the  rules 
of  the  declaration  of  Paris,  may  be  men- 
tioned as  confirming  the  view  here  taken.] 


INDEX 


INDEX 


Absolutism,  231 

Acapnlco,  the  Barrundia  affair 
at,  177 

"Acapulco,"  tbe  case  of  Gen- 
eral Barrundia  and  the,  177-180 

Adams,  Henry,  on  the  Declara- 
tion of  Paris,  274,  275 

Adams,  John  C^uincy,  denies 
Russian  jurisdiction  over  Be- 
ring Sea,  174 

Africa,  land-grabbing  in,  x,  1 

Aggressive  policy,  an,  15, 16, 18, 
188-191 

"  Alabama,"  the  case  of  the,  38- 
40,  46,  196,  217,  247,  265 

Alaska,  acquisition  of,  11,  107, 
173-176:  the  waters  of,  173-177; 
the  sealing  question,  215 

Aleutian  Islands,  the  seal-fisher- 
ies, 171 

Alexandria,  bombardment  of,  138 

"  Allianca,"  the  case  of  the,  31 

Alsace-Lorraine,  104, 105 

Altruism,  not  an  attribute  of 
states,  241,  242 

America,  non-interference  of  Eu- 
rope in  affairs  of,  4,  5 ;  the 
headship  of,  10,  16,  73, 156, 190, 
238;  the  expulsion  of  Europe 
from,  75 

"  America  for  the  Americans,"  4 

American  temperament,  the,  8,  9 

"  Amy  Warwick,"  the  case  of  the, 
27 

Arabi  Pasha,  outbreak  by,  138 

Arbitration,  9,  21.  56,  67,  213,  230, 
244-247,  249-258,  261-269 

Armed  neutnility,  the  first,  85, 86 

Armenia,  Amcricaii  losses  in,  xi 

Army,  the  United  .^tates,  16,  17, 
99,  189 

Arthur,  Chester  A.,  on  the  recog- 
nition of  the  Peru\'ian  govern- 
ment, 116 

Asylum,  the  right  of,  179,  180, 
184-186 


Atlantic  Ocean,  American  inter- 
ests in  the,  108 

Atrato,  proposed  canal  route  at, 
142 

Australasia,  the  pearl-fisheries 
of,  219 

Austria,  signatory  to  Suez  Canal 
agreement,  141 ;  the  Monroe 
Doctrine  and,  229 

Autonomy,  Cuban,  65 

Balance  of  power,  106,  223 

Ballot,  the  purification  of  the,  189 

Balmaceda,  General,  tiie  case  of 
the  "  Itata,"  180-186 ;  defeat  of, 
183 

Baltic  league,  the,  85 

"Baltinioic,"  the,  affair  in  Val- 
paraisii,  9,  186-188 

Banking  sytstem,  the,  12 

Barrundia,  General,  the  case  of, 
6,  177-180 

Bayard,  Thomas  F.,  sealing  pol- 
icy, 2,  218 

Belgium,  neutrality  of,  160,  223 

Belligerency,  the  recognition  of, 
25-34,  62.    See  also  lNsr]!(;ENTS 

Belligerent  interests  subservi- 
ent to  neutral  interests,  156 

Bering  Sea  controversy,  6, 170- 
177,  213-220 

Blaine,  James  G.,  the  sealing 
jiolicy  of,  2;  on  the  United 
States'  Hawaiian  policy,  126; 
Panama  Canal  policy,  146 ;  on 
the  Clavton-Bulwer  treaty,  146, 
162,  164 

Blockades,  28-32, 86,  88,  92,  95,  182, 
273,  275-278,  280 

Blount,  Commissioner,  action  in 
Hawaii,  119 

Bolivia,  war  with  Chile  and 
Peru,  116 

Bounties  on  fish,  197 

British  Columbia,  the  seal-fish- 
eries, 171 


285 


286 


INDEX 


Britisli    Guiana,  the   boundary 

question,  77,  224.  237 
Brown,  Justice,  decision  in  the 

case  of  the  "  Caroudelet,"  47 
Bryanism,  18 
Bulgaria,  Russian  intervention 

in,  74 

Calderon,  President,  recognition 
of  his  government  of  Peru, 
121 

Calhoun,  John  C,  on  the  right 
of  asylum.  186  ;  on  the  Monroe 
Doctrine,  232,  233 

California,  the  conquest  of,  10, 
16, 107 

Canada,  the  United  States  look- 
ing toward,  10;  relations  with 
the  United  States,  18;  possi- 
bilities of  profit  by  Spanish- 
American  war,  89;  Usheries 
disputes,  176, 195-209 ;  recipro- 
city, 194-196, 198-200, 202-206, 209; 
the  sealing  coutroversy,  218 

Canal  neutralization,  the  princi- 
ples of,  147-149,  153-165 

Canals.  See  Central  Ameri- 
can Canals;  Interoceanic 
Canal 

Canso,  Gut  of,  the  fisheries  of 
the,  201,  203,  207 

Cape  Cod,  the  fisheries  of,  201 

Capital  and  labor,  189 

Capture,  right  of,  86-93,  95,  96 

Carlism,  72 

"  Carondelet,"  the  case  of  the,  47 

Carrying-trade,  the  world's,  5.  6 

Castiue,  Me.,  during  War  of  1812, 
98 

Caucus  system,  the,  14 

Central  America,  self-govern- 
ment in,  115;  application  of  the 
Monroe  Doctrine  in.  1").") 

Central  American  canals,  7,  8, 
10,  16,  108,  133-149,  153-165,  265, 

266.  See  also  Interoceanic 
Canal 

Chauiperico,  the  case  of  Gen- 
eral Barrundia  at,  177 

"  Charleston,"  chase  of  the 
"Itata"  by  the,  181, 182 

Chile,  war  with  Bolivia  and 
Peru,  lie ;  the  case  of  the 
"Itata,"  180-183;  right  of 
asylum  in,  184-186 ;  the  case 
of  the  "Baltimore,"  186-188; 
straincil  rclatimis  lictweeu  the 
United  States  and.  l,ss.  189 

China,  the  land-seranible  in,  x; 
relations  with  the  United 
States,  18 ;  an  American  sena- 
tor's   criticisms  of,     80;    the 


China — continued 
treaty    of    Simonoseki,    105; 
American  interests  in,  108 

Chinese  imniigi'atiou,  18 

Citizens,  protection  of,  6 

Civilized  nations,  their  duties 
among  uncivilized  races,  6 

Civil-service  reform,  12 

Civil  War,  the,  16,  27,  29,  32,  38- 
40,  43,  46,  93,  95,  234,  246,  274, 
275 

Clay,  Henry,  on  the  Monroe  Doc- 
trine, 231 

Clayton,  John  M.,  on  the  United 
States'  Hawaiian  policy,  124; 
on  the  right  of  asylum,  186 

Clavton-Bulwer  treaty,  the,  7, 
143,  146,  159,  162-165,  265 

Cleveland,  Grover,  attittide  to- 
ward Hawaii,  2;  attitude  on 
the  Cuban  question,  9,  25;  in- 
terference in  the  Venezuelan 
boundary  case,  76-78,  224,  228- 
230,  236-238  ;  sealing  policy,  218 ; 
his  Monroe  Doctrine,  223-238; 
threats  against  England,  228, 
236,  238 

Coal,  its  status,  93,  94 

Coaling-stations,  99, 108 

Coast  defense,  16, 17,  88 

Coast  fishermen,  exemption 
from  capture,  92, 196 

Colonial  adventure  and  aggran- 
dizement, 1,  73,  110 

Commerce,  the  protection  of  a 
nation's,  5;  the  blight  of,  13; 
effects  of  war  on,  26,  28-32,  38, 

39,  43-45,  49,  85-98,  273-282  ;  the 
modern  customs  of,  85-87,  89, 
95 ;  war  upon,  88 

Commerce-destroyers,  88 
Commercial  rivalry.  13 
Compromise  tariff,  109,  110 
Concert  of  nations,  157 
"  Concert"  of  the  Powers,  4 
Confederate  States,  recognition 

of  their  belligerency,  27,  29,  38, 

275 ;    trade  with  England,  32, 

38-40 
Conflict,  the  law  of  state  life  and 

gro\vth,  242 ;  not  war,  242 
Congress  of  Vienna  (1815),  the, 

247 
Conquest,  the  right  of,  105 
"Conservatives,"  the  policy  of 

the.  11.  12,  100 
Constantinople,     the      Russian 

jxdiey    eoncerniiig,    74;    Suez 

Canal  con\  ention  at,  137,  140 
Contraband  of  war,  28,  30-32,  39, 

40,  43-45,  86,  89,  92-95,  181,  182, 
273,  277,  278 


INDEX 


287 


Contracts,  eflfect  of  war  on,  96 

Coi'iuto,  Eugland's  possible  de- 
signs against,  164 

Corn  Island,  England's  possible 
designs  on,  164 

Costa  Rica,  tlie  provisional  gov- 
ernment of,  121;  the  Clayton- 
Bill  wcr  provisions  concerning, 
164 

Credit,  12,  13,  18 

Crimean  War,  the,  273 

Cross  versus  Harrison,  the  case 
of,  97 

Cuba,  its  strategical  position,  10, 
108;  American  desire  to  annex, 
15;  (luestiou  of  recognition  of 
bellii,^erenc.v  in,  25-34,  37,  43,  48, 

62,  78  ;  American   losses  in,  26, 

63,  77,  78;  question  of  recogni- 
tion of  independence  of,  33,  34, 
62,  78,  86;  American  expedi- 
tious to,  37,  39,  40,  45-48;  the 
shipment  of  arms  to,  38-40,  45- 
48;  relations  with  tlic  United 
States,  :j'.i-4;» ;  American  sym- 
pathy  for,  40,  45,  64;  the  condi- 
tion of  the  insurgents  in,  47,  48  ; 
the  question  of  intervention 
in,  61-67,  74,  80  et  seq.;  United 
States'  trade  with,  63 ;  the  re- 
concentra(U)S,  64,  65,  76 ;  auton- 
omy in,  i;.-),  80,  81;  possibilities 
of  Unite<l  States'  annexation, 
66;  the  civilization  of,  7."i;  the 
exi)nlsion  of  the  Spanish  from, 
75,  90 ;  starvation  m,  76 ;  the 
pacification  of,  80,  82,  106  :  the 
insurgents'  claims,  Hi;  the  in- 
dependence of,  83,  84,  111 ; 
blockade  of.  92  ;  the  future  of, 
106 ;  the  Itey  of  an  iuteroceanic 
canal,  108 ;  anti-annexation 
feeling  concerning,  128 

Cuban  question,  the,  19 
Culver,  Mr.,  despatch  from  \V.  H. 

Seward,  117 
Cura^-ao,  the  "  Sumter  "  at,  27 
Currency  question,  the,  9, 12,  13, 

18,  66.  99,  109,  110 
Gushing,     Caleb,     instructions 

from  Hamilton  Fish,  184 
Customs  duties,  effect  of  war  on, 

97,  98 

Dana,  Richard  H.,  on  interna- 
tional law,  97,  98;  on  the  Mon- 
roe Doctrine,  232 

Dardanelles,  the,  74,  134 

Darien,  proposed  canal  route  at, 
142 

Davis,  Jefferson,  declines  to  ac- 
cepttheDeclaratiou  of  Paris,  275 


Debts,  effect  of  war  on,  96 
Declaration  of  Paris,  87,  88,  90, 

246,  273-282 
Declaration  of  war,  91 

De  facto governnu^uts,  the  recog- 
nition of,  115  ct  seq. 

De  I^csseps,  Ferdinand,  Panama 
Canal  scheme,  145,  146 

Demagogy,  l'.»,  20 

Dinichy  tariff,  its  application  to 
coufiuered  territory,  98 

Diplomacy,  243,  244,  246-250,  253, 
256-258,  261-264 

Due  diligence,  what  is,  37-40,  49, 
56,  57,  62,  67,  79 

Education,  21 

Egan,  Patrick,  the  "  Itata  "  case, 

183.  184,  186 

Egypt,  the  Suez  Canal,  136-141, 
146,  148,  154,  160;  outbreak  of 
Arabi  Pasha  in,  138;  British 
occupation  of,  138 

Embargo,  243 

Enemy's  goods  under  neutral 
flag,  88,  90,  273,  276-279,  281,  282 

England,  relations  witli  United 
States,  xi,xii,3,lH,  I'.t;  relations 
with  Russia,  2;  the  gold  stan- 
dard in,  8;  free  trade  in,  8; 
deep-seated  American  hatred 
of,  8-10,  16 ;  naval  strength,  16; 
trade  with  the  Confederate 
States,  32,  38-40;  French  war 
measures  against,  33 ;  the  For- 
eign Enlistment  Act,  42,  47,  48 ; 
neutrality  during  the  Civil 
War,  43 ;  aid  to  Greece,  74 ;  the 
Venezuelan     question,     76-78, 

247,  251 ;  her  colonial  system, 
80, 109, 110;  relations  with  Ger- 
many, 81;  attitude  concerning 
neutralitj', 86  ;  attitude  reg;n(l- 
ing  coal,  93;  svnipathv  with 
the  United  States,  106;  is(da- 
tion  of,  110  ;  Suez  Canal  policy, 
137-139,  141,  154;  bombardment 
of  Alexandria,  138;  foreign 
suspicions  of  her  good  faith, 
139, 163 ;  canal  treaties  with  the 
United  States,  142-144,  146,  159, 
ICj-Hi.");  possibility  of  war  with 
the  United  States,  157-159,  161- 
164 ;  possible  designs  in  Nica- 
ragua, 164;  tisheries  disputes, 
170-177, 195-209  ;  ceases  to  exact 
maritime  homage,  173 ;  denies 
Russian  jurisdiction  over  Be- 
ring Sea,  174;  treaty  with  Rus- 
sia (1825),  175;  reciprocity, 
194-196, 198-200.  202-206,  209  ;  tlie 
sealing    controversy,  213-220; 


288 


INDEX 


England— conlhiued 
alleged  aggi-esslons  of ,  228,  236, 
265 ;  President  Cleveland's 
threats  agaiust,  228,  236,  238; 
the  Maine  boundary  qnestion, 
230 ;  offer  of  Yucatan  to,  232 ; 
her  work  of  civilization,  237 ; 
abolition  of  the  slave-trade, 
241;  the  ease  of  the  "Ala- 
bama," 247  (see  also  "  Ala- 
bama"); the  Transvaal  dis- 
pute, 247;  the  arbitration 
treaty,  261-269  ;  recognizes  the 
Confederate  States,  275 ;  con- 
cedes right  of  neutrals  to 
carry  enemy's  goods,  280,  281 

Europe,  United  States'  absten- 
tion from  complications  in, 
3,  4  ;  principle  of  non-interfer- 
ence in  American  affairs,  4,  5 ; 
the  standing  armies  of,  13 ; 
sympathy  for  the  Southern 
cause,  39 ;  the  Turkish  ques- 
tion, 75;  attitude  cimcoiiiiiig 
coal,  94;  the  United  ^^tatfs  anil, 
105;  concert  regarding  the 
Suez  Canal,  137-141,  100;  appli- 
cation of  the  Monroe  Doctrine 
to  the  Powers  of,  155 

Everett,  Edward,  letter  from 
Hugh  S.  Uegare,  123,  124 

Fanatics,  responsibility  for,  55,57 
Fayal,  the  case  of  the  "  General 

Armstrong"  at,  53,  54 
Fer(B  nutiirce,  170-172,  218,  219 
Fiat-money,  13,  14 
Filibustering    expeditions,     30, 

37,  39,  40,  44-49,  54,  62,  78,  79,  181 
Financial  control  and  rights  of 

sovereignty,  139 
Financial'   system,   the  United 

States',  18,  21 
Fish,  Hamilton,  on  the  right  of 

asylum,  184,  185 
Fisheries  question,  170-177,  195- 

209,  265 
Flag,  the  rights  of  the,  30 
Fleming  v.  Page,  case  of,  97 
*'  Fh)rida,"  the  case  of  the,  40 
Forced  loans,  18 
Foreign  aggression,  the  dangers 

of,  20 
Foreign  carrying-trade,  277-281 
Foreign  enlistment  acts,  28,  42, 

47,  48 
Foreign    entanglements,    15-20, 

73,  169,  188-191 
Foreigners,  the  status  of   resi- 
dents in  a  hostile  country,  96 
Foreign   i)()licy,    representative 

government    and,    2 ;    in    the 


United  States,  2;  an  aggres- 
sive, 10 

Foreign  relations  of  the  United 
States,  18  ;  an  inquiry  concern- 
ing, 169-191 

Forest  preservation,  12 

Formosa,  ceded  to  Japan,  105 

"Forwards,"  the  policy  of  the, 
4,  10,  15,  16,  18,  100 

France,  relations  with  theUuited 
States,  3 ;  war  measures 
against  England,  33;  attitude 
concerning  coal,  94 ;  interfer- 
ence with  Japan,  105  ;  share  in 
the  Revolutionary  War,  120; 
recognition  ot  the  National  De- 
fense Coiiiiiiittcc  of,  121;  sus- 
pected of  designs  upon  Hawaii, 
124;  a  ship-canal  across,  134; 
Suez  Canal  policy.  138,  141 ;  in- 
tervention in  Mexico,  155;  the 
sealing  controversy,  217;  the 
Monroe  Doctrine  and,  229 ; 
recognizes  the  Confederate 
states,  275 

Free  ships  and  free  goods,  85-90 

Free  trade,  8,  12 

Frelinghuysen,  Frederick  T.,  on 
the  recognition  of  revolution- 
ary governments,  116;  on  the 
Clayton-l'.ulwer  treaty,  146, 
162  ;  Panama  Canal  policy,  146 ; 
on  the  right  of  asylum,  184 

Fund}-,  Bay  of,  the  fisheries  of 
the,  173,  205 


Garonne,  a  ship-canal  from  the, 
134 

"  General  Armstrong,"  the  case 
of  the,  53,  54 

Geneva  arbitration,  247,  265.  See 
also  "Alabama." 

Germany,  action  at  Manila,  ix; 
land-grabbing,  1 ;  naval  devel- 
opment, 1 ;  relations  with  tlie 
United  States,  18;  relations 
with  Hayti,  72  ;  relations  with 
England,  81;  attitude  concern- 
ing coal,  94 ;  interference  with 
Japan,  105;  colonial  system, 
110;  signatory  to  Suez  Canal 
agreement,  141 ;  the  sealing 
controN'ci'sv.  217 

Gold  llcpulil'icans,  19 

Gold  standard,  the,  8 

Gortchakoff,  Prince,  on  the  Suez 
Canal,  138 

Government,  by  popular  will.  2 ; 
by  caucus,  14 ;  by  newspaper,  14 

Grand  Manan,  tlie  fisheries  of, 
200 


INDEX 


289 


Grant,  U.  8.,  Cuban  policy  of,  C3 
Givat  Belt,  tlKs  134 
GiTiit  Britain.    8eo  KN(ii,AND 
Greece,  the  inilependeuce  of,  74, 

75 
Guatemala,  the  Barrundiaallair, 

C,  177-180 

Gunpowder,  contraband  of  war, 
93 

"  Halifax  Chronicle,"  on  the 
I'cciprocity  treaty,  203 

Halifax  lisliory  award,  the,  I'J'J, 
205,  251,  2(>5 

Harbor  defense,  Ifi,  17 

Harrison,  Benjamin,  Hawaiian 
policy,  2, 127 ;  the  scalinj;  policy 
of,C 

Havana.the  case  of  the  "Maine," 
53-57,  01,  67,81,  82 

Hawaii,  its  strategical  i)osition, 
10;  annexation  of,  viii,  2,  10, 
W,  108;  the  Japamsc  (jiicstion 
in,  18;  the  law  and  the'  policy 
for,  115-129;  tlic  iiruvisiomtl 
government  rec<>i;iiized  by  the 
United  States,  118-120  ;  the  po- 
sition of  the  Queen,  118,  122, 
127;  its  trade  and  population, 
123, 124, 120-129  ;  the  opium  traf- 
fic and  Louisiana  lottery 
scheme  in,  127 

Hayes,  Rutherford  B.,  on  recog- 
nizing de  facto  governments, 
lie,  117 

Hayti,  rehitious  with  Germany, 
72;  the  right  of  asjdum  iii, 
184 

High  seas,  extraordinary  juris- 
diction over  the,  219 

Hippolyte,  President,  47 

Hoar,  (4eorge  F.,  views  in  the 
"  Caromlelet"  case,  47 

Holland,  recognizes  Confederate 
belligerency,  27,275;  signatory 
to  iSiiez  Canal  agreement.  Ml 

Honduras,  proposed  canal  route 
in,  142 

Honolulu,  revolution  in,  118.  See 
also  Hawaii 

Humanitarianism,  natioiuil,  241 

Humanity,  the  claims  of,  G3,  04, 
74-70,  99,  106 

Ibrahim  Pasha,  74 

Hicome  tax,  18, 110 

Independeiu^e,  the  right  of,  223 

Independent  parties,  li) 

India,  the  Sue/  (anal  and,  138 

Insuraiu-e  policies,  etl'ect  of  war 
on,  96 

Insurgents,  the  status  of,  25-34, 
40,  42,  43,  63 

19 


Intentourse,  freedom  of,  156 
Internal  development,  100 
Internal  revenue,  17,  18,  110 
International  controversies,  the 

settlenu'ut  of,  241-258 
International  law,  the  applica- 
tion   of,   41,   43,  45,  48,  49;  fh(- 
Monroe  Doctrine  and,  225,  226, 
228 
Interoeeanic  canal,  in  the  light 
of  precedent,  133-149;  from  the 
standpoint  of  self-interest,  153- 
105;  the  question  of  an,  205 
Intervention,  in  Cu])a,  61-67  ;  the 

l)rinciples  of,  73-77 
Italy,  attitude  concerning  coal, 
94;  signatory  to  Suez  Canal 
agreement,  141;  the  New  Or- 
leans hneliinus,  187;  treaties 
with  Uiiited  States,  278 
"  Itata,"  the  case  of  the,  6,  46, 
180-183 

Japan,  the  new  status  of,  x ;  re- 
lations with  the  United  States, 
18;  the  Japanese  in  Hawaii, 
18  ;  the  treaty  of  Simonoseki, 
105;  the  sealing  controversj', 
217 

Jingoism,  0,  11,  14,  67,  100,  155 

Joint  commissions,  254 

Kalakaua,  King,  119 

Kent,  Chancellor  James,  denies 
Russian  jurisdiction  over  Be- 
ring Sea,  174 

Kilpatrick,  Judson,  despatch 
from  W.  H.  Seward  to,  234,  235 

Labrador,  the  fisheries  of,  200 

I>ake  fisheries,  208 

Linigston,  Minister,  instructions 

fioni  Mr.  Frelinghuysen  to,  184 
r.egal-tender  decisions,  12 
Legare,  Hugh  S.,  on  the  United 

States'  Hawaiian  policy.  123, 

124 
Letters  of  marque.    See  Pkiva- 

TEERING 

Lincoln,  Abraham,  war  mea- 
sures, 29 

Little  Belt,  the,  134 

Livingston,  Edward,  on  recog- 
nized governments,  116 

Locke,  Judge,  decision  in  the 
case  of  the  "Thi-ee  Friends," 
47,  48 

Logan,  John  A.,  despatch  from 
F.  T.  Fi'elinghuysi'U,  110 

Logic  and  human  passions,  82, 
83 


290 


INDEX 


London,  the  sealskin  industry 
of,  172 

LoDir,  Joliu  D.,  Secretary  of  the 
Navy,  ;)7,  40 

Louisiana  lottery,  scheme  to  in- 
troduce it  in  Hawaii,  1'27 

LouiBiaua  Purchase,  the,  10,  107 

Lowell,  James  Russell,  despatch 
from  James  G.  Blaine,  164 

McCanlev,  Mr.,  instructions 
from  I);mi<'l  Webster,  186 

Machine  ixilitics,  12,  14 

McKialey,  William,  Cuban  pol- 
icy. 65,'7G,  80,  81,  83,  91 

Magdalen  Islands,  the  fisheries 
of  the,  200 

Magellan's  Straits,  134 

Mail  service  on  the  seas,  86,  95 

Maine,  the  fisheries  of,  201,  205; 
the  boundary  question,  230,  246 

"  Maine,"  the  case  of  the,  53-57, 
61,  67,  81,  82 

Managua  Lake,  proposed  canal 
route  via,  143 

Manila,  the  Germans  at,  ix  ;  the 
American  victory  at,  85,  103; 
the  status  of  foreigners  in,  96 ; 
effect  of  capture  on,  96-99  ;  the 
question  of  keeping,  111.  See 
also  Philippines 

Marcy,  Williaiii  L.,  on  the  United 
States'  IIa\v;iii;iu  iidlicy,  125 

Marcy  anunduiciit,  tlic,  274 

Mare  clausum,  the  question  of  a, 
172-177,  215 

Martial  law  in  captured  terri- 
tory, 97 

Mason  and  Slidell  attair,  the, 
179 

Massachusetts,  the  fisheries  of, 
201 

Maximilian,  his  Mexican  em- 
pire, 233,  234 

IVIediation,  244-246 

Mediterraueau  Sea,  Russian 
hopes  in  the,  2  ;  iimiKised  ship- 
canal  across  France  to  the,  134 

Men-of-war,  resiionsibility  for 
visiting,  53-57,  67 

Metternieli,  Pi'iiice,  on  the  Suez 
Canal  project,  137 

Mexican  War,  16,  97 

Mexico,  relations  with  theUnited 
States,  3 ;  United  States'  ac- 
quisition of  territory  from,  10 ; 
French  intervention  in,  74,155, 
233,  234 ;  recognition  of  dt; 
facto  gdverniiieiits  in,  117  ;  pro- 
posed interoceaiiie  cinal  in, 
142;  the  IJaniuidia  affair,  177- 
180;  the  sealing  controversy. 


Mexico — cnnlinued 
217  ;  non-signatory  to  the  Dec- 
laration of  Paris,  273,  282 

Militarism,  lo'.) 

Military  occupation  and  sover- 
eignty, 104 

Military  supplies,  trade  in,  31, 
32,  38-41,  43-45,  49,  62,  78,  79, 
181-183 

Mississippi  River,  free  naviga- 
tion of  the,  197 

Mizner,  Mr.,  and  the  Barrundia 
affair,  177-ls() 

Modus  Vivendi,  the,  217 

Mohammed  Ali,  on  the  Suez 
Canal  project,  137 

Monroe  Doctrine,  the,  7,  8,  33, 
73,  128,  154-156,  190,  223-238,  2.52, 
265  ;  its  origin,  155  ;  President 
Cleveland's,  223-238 ;  a  policy, 
not  a  law,  226 

Monroeism,  73 

Morgan,  Senator,  dissent  in  the 
Bering  Sea  award,  215 

Mosquito  Coast,  the  protector- 
ate of  the,  162, 164 

"  Most-favored-uation  clause," 
18,  106,  156 

Municipal  corruption,  189 

Municipal  reform,  12, 109 


Naples,  intervention  of  the  al- 
lied powers  in,  231 
Napoleon  III,    intervention   in 

Mexico,  74,  233,  234    (see  also 

Mexico)  ;  suggests  mediation 

in  the  Civil  War,  246 
Napoleonic  wars,  the  American 

carrying-trade  during  the,  277 
National  credit,  12,  13,  21,  85 
National  debt,  110 
National  growth,  1,  11 
National  hunianitarianism,  241 
Naturalized    citizens,    effect   of 

war  on,  96 
Naval   architecture,  revolution 

in,  5 
Naval  supremacy,  85 
Navarino,  battle  of,  74,  75 
Navigation,  freedom  of,  156 
Navy,  the  duties  of   a,  5 ;    the 

United  States,  16,  17,  1H9 
Netherlands,    the    partition    of 

Belgium    from    the,    223  ;    the 

Northeast   boundary    dispute 

referred  to  the  King  of  the, 

246 
Neutral    goods    under    enemy's 

tlag,  HH,'273,  274,  276,  278 
Neutial  interests  paramount  to 

belligerent  interests,  156 


INDEX 


291 


Neutrality,   enforcement   of,  6; 

the  i-iKlitH  aurt  duties  of,  27-32, 

37-4'.t,    i)2-6i,    70,  78,   85-90,    242, 

27;i-2.s2;    ine.siTvatiim   liy  the 

United  States,  37-ti) 
Neutralizatidii,  Wliarton  ou,  li7, 

148  ;  of  iutei'oeeauic  eauals,  7, 

8,  133  et  seq.,  200 
Neutralization  versus  protection, 

117-1-1'J,  137 
New  Brunswick,  tlie  fisheries  of, 

201 

Newfoundland  fisheries,  the,  200, 

201,  205 
New  Granada-,  treaty  with  the 

United  States,  U2,  143,  147,  154. 

See   also  United  States    of 

COLOMIUA 

New  Mexico,  the  acquisition  ot, 

107 
New  Orleans,  the  Italian  lyneh- 

iugs  in,  187 
New  York,    the    "  Vizcaya "  in 

the   port   of,   57  ;   dangers  to 

commerce  of,  89 
Nicaragua,  filihusterins  in,  10; 

treaty  with  the  United  States, 

144,  145;    possibilities    of    the 

United  States'  position  in,  159 
Niearauiia  (anal,  the,  09,135,139, 

142-144,  149,  154,  158,  101,  104,  165 

Non-intervention,  the  principle 

of,  156 
Northeastern  houndary  dispute, 

246 
North  Sea  Canal,  the,  134,  135 
Nova  Scotia,  the  fisheries  of,  201, 

203 ;  the  trade  of,  203 

Occupation,  does  not  vest  sov- 
ereignty, 97 

Occupied  territory,  the  law  con- 
cerning, 98,  99 

Oluey,  Uicliiird.  attitude  on  the 
Cuixin  question,  9;  on  the 
headship  of  the  United  States, 
238 

Opium  traffic  in  Hawaii,  127 

Opportunism,  231 

Pacific  Ocean,  American  inter- 
ests in  the,  108;  the  sealing 
cimtroversy,  170-177,  215,  216 

Palma,  Senor,  25 

Panama,  Isthmus  of,  neutrality 

of,  143-149 

Panama  Canal,  the,  135, 142,  145, 
146 

Panama  Canal  Company,  agree- 
ment with  the  United  States 
of  Colombia,  145 

Panama  Congress,  the,  232 


Panama  Railway,  the,  143, 154 
Panics,  13 

Paper   blockades.    See   Block- 
ades 
Paris,  Suez  Canal  convention  at, 

140 

Paris,  Declaration  of,  87,  88,  90, 
240 ;  the  United  States  and  the, 
273-282 

Parties,  the  disintegration  of,  19 

Partnerships,  etfect  of  war  on,  95, 
96 

Party  politics,  12, 14, 19 

Patriotism,  19,  20, 100 

Pedio,  Dom,  231 

Pensions,  17,  110 

Pei'u,  war  with  Chile  and  Bo- 
livia, 116 ;  recognition  of  the 
government  by  the  United 
States,  116 ;  the  right  of  asylum 
in,  185 

Peyton,  Mr.,  instructions  from 
Daniel  Webster  to,  185,  186 

Philippines,  the  conquest  and 
future  of  the,  viii,  99, 103-111 

Piracy,  27,  32,  182,  226,  275 

Pitts, Captain, and  the  Barnmdia 
affair,  177-179 

Policing  the  seas,  5 

Politiea)  parties,  succession  of, 
2;  the  dividing-lines  of,  12;  dis- 
integration of,  19 

Political  refugees,  the  rights  of, 

180 

Politics,  the  citizen  in,  14 

Polk,  James  K.,  on  the  Monroe 
Doctrine,  232 

Populism,  19 

Populistic  Democracy,  the,  19 

Port  Harford,  CaL,  sealing 
limits,  216 

Porto  Rico,  eff'ect  of  capture  of, 
96;  the  acquisition  of,  99; 
American  operations  in,  103 ; 
the  future  of,  100,  108 

Portugal,  the  ease  of  the  "Gen- 
eral Armstrong,"  53,  54;  ex- 
tinct naval  dominion  of,  173  - 

Postal  service  ou  the  seas,  86,  95 

Power,  abuse  of,  ('> 

Preston,  Minister,  insti'uctions 
from  Hamilton  Fish,  184 

Prit)vloff  Islands,  the  sealing 
question,  171.  214-216,  218 

Prince  Edward  Island,  the  fish- 
eries of,  201 

Privateering,  32,  33,  86-90,  273, 
274,  270,  279-282 

Prizes,  92 

Proclamation  of  a  state  of  war, 

91 

Protection,  12, 17 


292 


INDEX 


Protection  of  the  fisheries,  197, 

206,  208,  209 
Protectiou  ccrs^s neutralization, 

147-149,  157 
Provisional     governments,   the 

status  of.  118-121 
Prussia,   the   Monroe   Doctrine 

and,   229;    treaties    with  the 

United  States,  278 

Railway  traffic  legislation,  12 

"  Ranwr,"  the  Barrundia  affair 
and  the,  178-180 

Reciprocitv,  2,  194-196,  198-200, 
202-206,  209 

Reconcentradoe,  the,  64,  65,  76 

Red  Cross  Society,  the,  76 

Reiter,  Coiiiinaiuler,  and  the 
Barrundia  afl'air,  178-180 

Representative  government,  2, 
15 

Reprisals,  243 

Retorsion,  243 

Revenue  laws,  violations  of,  45, 
46,  49,  182, 183 ;  in  captured  ter- 
ritory, 97,  98 

"Robert  and  Minnie,"  the  case 
of  the,  183 

Roman  law,  the,  250 

Russell,  Lord  John,  attitude  con- 
cerning the  Declaration  of 
Paris,  275 

Russia,  autocracy  in,  2 ;  relations 
with  England.  2 ;  her  Mediter- 
ranean policy,  2 ;  relations 
with  the  United  States,  3;  in- 
terveiitioTi  in  Bulgaria,  74;  her 
Dardanelles  policy.  74:  attitude 
concerning  coal,  '.t4 ;  interfer- 
ence with  Japan,  105  ;  war  witli 
Turkey,  137 ;  Suez  Canal  policy, 
137,  141;  the  sealing  contro- 
versy, 171-177,  215.  217,  218 ;  the 
sale  of  Alaska,  174-176;  treaties 
Avith  United  States,  174,  278; 
claim  of  jurisdiction  over 
Alaskan  wat<'rs.  174-176;  treaty 
with  l<;ngl;nul  (1K25),  175;  the 
Moni'oe  Doctrine  and,  229 

Sagasta,  Seiior,  83 

St.  John  River,  the  Maine  boun- 
dary question.  230 

St.  Lawrence  River,  the  fislieries 
of  the.  173,  201.  202,  207;  the 
Maine  lioundni'v  question,  2:!0 

Sallsliui-y,  Lon!,  on  non-user,  175; 
the  Venezuelan  boundary  case, 
226 

"  Salvador,"  the  case  of  the,  48 

San  Diego,  Cal.,  the  case  of  the 
"Itata"  at,  46, 181-183 


Sandwich  Islands.     See  Hawaii 
San  Francisco,  the  case  of  the 

"Baltiuiiire"  at,  187 

San  Jose.  Guatemala,  the  Bar- 
rundia affair  at.  178-180 

San  Juan,  Porto  Rico,  American 
operations  at,  103 

San  Juan  bouudar.y  case.  265 

San  Juan  River,  proposed  canal 
route  via,  142,  143 

Santo  Domingo,  anti-annexation 
feeling  concerning,  128 

Scientific  expeditions,  exemp- 
tion from  capture,  92 

Sealing  controversy,  the,  2,  18, 
170-177,  213-220 

Search,  right  of,  28,  31,  32,  39,  43, 
44,  86,  95,  241 

Self-defense,  wars  of,  6;  the 
right  of.  42,  44,  73,  74,  76-78,  223- 
225,  227,  238,  264 

Self-government,  21, 100, 115 

Seward,  WilliamiH.,  acquisition 
of  Alaska,  11,  215  ;  jiosition  con- 
cerning the  "Sumter."  27;  on 
the  recognition  of  revolution- 
ary governments,  117;  on  the 
United  States'  Hawaiian 
policy,  125,  126;  on  the  right 
of  asylum,  185  ;  on  the  Monroe 
Doctrine,  234,  235  ;  attitude  to- 
ward the  Declaration  of  Paris, 
274,  275 

"Shenandoah,"  case  of  the,  40 

Ship-canals.  See  Central  Amer- 
ican Canals;  Interoceanic 
Canal 

Shipping,  effects  of  war  on,  26, 
28-33,  39,  40,  43^6 

Silver  Democracy,  the,  19 

Silver  Republicans,  19 

Simonoseki,  tlie  treaty  of,  105 

Sixty-mile  limit,  tlie,  216 

Slavery,  12, 15 

Slave-trade,  the,  226,  241 

Snow,  Professor,  on  the  Monroe 
Doctrine.  231.2;i2 

South  America,  self-government 
in,  115;  de  fa<'to  governments 
in,  116, 117  ;  api>lic:itioii  of  the 
Monroe  Doctrine  in,  155,  229  et 
seq,;  the  right  of  asylum  in, 
184- 18<;;  projiosed  intervention 
of  the  allied  powers  in,  231 

SovereinntN-,  not  vested  by  occu- 
pation, 97;  financial  control 
and  the  rights  of,  139 

Spain,  relations  with  the  United 
States.  3,  18;  American  hostil- 
ity toward.  16;  the  Cuban 
(luestimi.  18;  rights  under  rec- 
ognition of  Cuban  Ijelligereucy, 


INDEX 


293 


Spain— continued 
31-34;  treatios  botwoon  the 
Uuited  States  and,  32,  33,  '.)4, 
278;  the  diitv  of  tlie  Uuited 
Btates  to,  37-4'.);  neutrality 
duriujtc  tlie  Civil  War,  4;t;  re- 
spousibility  for  the  "  Maine," 
53-57,  61,  07,  82  (see  also 
"Maine  ") ;  relatious  with  the 
Uuited  States,  53-57,  61-67,  78, 
94 ;  the  war  with,  viii,  71-100, 
282;  the  victim  of  cireum- 
stauces,  72  ;  the  national  policy 
of,  72 ;  her  expulsion  froiu 
Cuba,  75,  90 ;  bad  faith  of,  HI ; 
national  character,  83;  posi- 
tion on  privateering,  87-89; 
question  ot  expulsion  of  Amer- 
icans from,  94;  position  as  to 
the  Declaration  of  Paris,  87, 
88,273,  282;  her  rights  iu  the 
Philippines,  104 ;  signatory  to 
Suez  Canal  agreement,  141 ; 
extinct  naval  dominion  of, 
173;  the  right  of  asylum  iu, 
185 ;  intervention  of  the  allied 
powers  in,  331 ;  offer  of  Yuca- 
tan to,  232 ;  recognizes  the 
Confederate  States,  275 

Spanisli   taritf,  its  enforcement 
in  eonciuend  territory,  98 

Spirited  foreign  policy,  the  doc- 
trine of  a,  101,  189 

Standing  army,  a,  10 

State  policy,  l 

States'  lights,  12,  16 

Statutes,  interpretation    of,  41, 
46^9 

Stevens,  Minister,  action  in  Ha- 
waii, 119 

Stowell,  Lord,  on  the  right  of 
search, 95 

Strikes,  13 

Suez  CJaual,  the,  136-141, 146, 148, 
154,  160 

"  Sumter,"  the  case  of  the,  27 

Sweden,    treaties   with    TJnited 
States,  278 

Sweetwater  Canal,  Suez,  the,  140 

Tariff  question,  the,  2,  9, 12,  17, 

21,99 
Taxation  for  war  ])urpoHes,  10, 

17,  189 
Tehuantepec.  proposed  canal  at, 

142 
Territorial  claims,  262,  265,  266 
Texas,  the  annexation  of,  10,  16; 

recogniti<m   of   independence 

of,  120 
"Three   Friends,"  the   case   of 

the,  47 


Three-mile  limit,  the,  176, 195-197, 

202,  215 
Tilden    Electoral    Commission, 

the,  254 
Toriellc,  Colonel,  the  Barrundia 

aflair,  178 
Trade,  usages  of,  86,  87,  89 ;    the 

elfeet  of  war  on,  96 
Transvaal  (lis])ute,  247 
Treaties,  tlie  power  of  making, 

28;  the  obsei-vancc  of,  150 
"  Trent,"  the  case  of  the,  179 
Triple  Alliance,  the,  223 
Turkey,       Russia's        attitude 

toward,  74 ;  battle  of  Navarino, 

74,  75;    the    expulsion    of,  75; 

the    Suez    Canal,  136,  137, 141 ; 

war    with    Russia,    137;    the 

maintenance  of,  223 
Tyler,    John,   on     the     United 

States'  Hawaiian  policy,  123 

Ultimatum,  the  formulation  of 
an,  91 

Uncivilized  races,  the  duties  of 
civilized  nations  among,  6 

United  States,  foreign  policy, 
vii-xii,  2,4,  109,  110;  colonial- 
ism, viii,  11,  99,  100,  108;  rela- 
tions with  England,  xi,  xii,  3  ; 
diplomacy  in,  2;  foreign  rela- 
tions, 2,  3,  9,  169-191;  nati(inal 
expansion,  3,  4;  alistcntion 
from  European  complications, 
3,  4 ;  relations  with  Spain,  3, 
53-57,  61-67,  94;  "conserva- 
tives" and  "forwards,"  4; 
non-interference  iu  European 
affairs,  4,  5;  non-interference 
of  Europe  in  affairs  of,  4,  5 ; 
belligerent  feeling  in,  5;  the 
interests  of,  in  foreign  ports, 
5 ;  the  navy,  5,  99,  274  ;  the  Cen- 
tral Anieriean  canal  qnesticm, 
7,  8;  Irisli  inthicnct'  in  polities, 
8;  deep-seated  hati<'d  of  Eng- 
land, 8-10,  10  ;  the  tariff  ques- 
tion, 9;  extension  of  power, 
10;  looking  toward  Canada, 
10 ;  powers  of  the  executive,  10 ; 
annexation  of  Mexican  terri- 
tory, 10;  expansion  of  terri- 
tory, 10,  11,  73,  108,  109;  head- 
ship of  the  American  continent, 
10,  16,  73,  156,  190,  238  ;  wealth, 
16;  public  lands,  16, 17, 109;  the 
army,  16,  17,  99,  189;  military 
and  naval  expenditures,  17; 
etfects  of  recognition  of  Cuban 
belligerency  on,  25-34;  losses 
in  Cuba,  20,  03,  77,  78;  treaty 
with   Spain,  32,  33;   prescrva- 


294 


INDEX 


United  States— continued 
tion  of  ueutrality  by,  37-49  ; 
duty  to  Spain,  ;i7-49;  the  ex- 
ecutive and  judicial  depart- 
ments, 41, 43 ;  trade  witli  Cuba, 
63 ;  tlie  war  with  Spain,  71-100 ; 
national  policy,  73;  domestic 
problems,  73;  headquarters  of 
the  Ciiliaii  insuircction  in,  78; 
anti-Spanish  sentiment  in,  78, 
79;  the  palience  of,  81 ;  position 
on  privateering,  88,  89,  279,  281, 
282  ;  attitude  concerning  coal, 
93,94;  treaty  of  1795,94;  civil 
service,  99 ;  ojttimism  of  the 
people,  103;  the  European 
powers  and,  105;  the  Oriental 
trade,  105;  recognition  of  de 
facto  governments,  116;  recog- 
nizes the  provisional  govern- 
ment at  Hawaii,  118-120;  the 
Revolutionary  War,  120;  Ha- 
waiian policy,  122-129;  the 
value  of  an  interoceanic  canal 
to,  133  et  seq.,  153-165;  treaty 
with  New  Granada,  142,  143, 
147,  154;  canal  treaties  with 
England,  142-144,  146,  159,  162- 
165;  protection  of  the  Panama 
Railway,  143, 154  ;  treaty  willi 
Nicaragua,  144, 145;  limits  of  its 
streniith,  148;  possiliilities  of  a 
hostile  situation  in  Nicaragua, 
159;  the  sealing  controversy, 
170-177,  213-220;  the  purchase 
of  Alaska,  173-176;  treaty  with 
Russia  (1824),  174;  urges  Rus- 
sian jurisdiction  over  Be- 
ring Sea,  174-176;  strained 
relations  with  Chile,  188, 189 ; 
enlarging  views  of  rights  of 
sovereignty,  188-190;  recipro- 
city, 194-196,  198-200.  202-206, 
209;  the  flsliery  <|ncstion.  195- 
209;  enconran  inent  of  lisher 
ies,  197  ;  the  State  Dciiai-tnieut, 
248,  249 ;  the  arbitration  treaty, 
261-269;  the  Declaration  of 
Paris  and  the,  273-282 

United  States  Congress,  attitude 
toward  Spain,  78-80;  refuses  to 
recognize  Cuban  iudepeu- 
dence,  84;  formally  declares 
war,  91 

"United  States  Fish  Connuis- 
sion,  Report  of,"  cited,  202 

United  States  of  Colombia,  pro- 
posed canals  across,  142,  143; 


agreement  with    the   French 
Panama  Canal  Company,  145 
United  States  Revised  Statutes, 

§^  5283,  52Hi;,  46,  48 

United  States  Senate,  contest 
with  the  executive,  9;  action 
on  tlic  arbitration  treaty,  9 

Universal  sullrage.  14 

Valparaiso,    the    "  Baltimore " 

attair  in,  9, 186-188 
Vaughan,  Sir  Charles,  despatch 
from   Edward    Livingston  to, 
116 
Venezuelan  boundary  question, 
the,  8,  18,  19,  76-78,  223-238,  247, 
251 ;  recogniti(m  of  a  de  facto 
government  in  Venezuela,  117 
"Virginius"  art'air,  tlie,  8,  44 
Vienna,  Congress  of  (1815),  247 
"Vizcaya,"  United  States  pro- 
tection for  the,  57 

War,  28,  30,  31,  71,  91,  94,  110;  the 
inception  of,  91 ;  abrogates 
treaties,  94;  personal  results 
of,  95,  96 ;  the  right  of,  252 

War  of  1812, 195,  243 

Washington,  George,  his  fare- 
well address,  3,  100,  169,  190,  191 

Wcltster,  Daniel,  on  the  United 
States'  Hawaiian  policy,  122- 
124;  ou  the  right  of  asylum, 
185,  186 

Weyler.  General,  recall  of.  65; 
the  prototype  of,  74;  his  con- 
centration system,  76 

Wharton,  Dr.  Fraueis,  on  recog- 
nition of  insurgency,  42 ;  ou 
neutralization,  147  ;  liis  "Digest 
of  International  Law  "  quoted, 

234,  235 

Wharton,  William  P.,  views  ou 
the  lifting  out  of  Cuban  expe- 
ditions, 47 

Wlieaton,  Heury, his  "Elements 
of  International  Law"  cited, 
97,  232 

Woolsey,  President  Theodore 
D.,  on  the  Mouroe  Doctrine, 
235 

Wyse,  Lieutenant,  .agreement 
with  the  United  States  of  Co- 
lombia, 145 

Yucatan,  offers  its  territory  to 
Great  Britain,  Spain,  and  the 
United  States  232 


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u'Jl    FEB  10 1970 


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SEP  1  9 197^ 


FonnL9 — 15m-10,'48(B1039)444 


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